14
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement") is made and entered into on this
__ day of July, 2000, by and among PLM INTERNATIONAL, INC., its successors
and/or assigns (the "Company") and Xxxxxxx X. Xxxx ("Employee").
WHEREAS, Employee currently holds the positions of President, PLM
Investment Management, Inc.; Vice President, PLM Financial Services, Inc.; and
Vice President, Marine, PLM Transportation Equipment Corporation, each a direct
or indirect wholly owed subsidiary of the Company; and
WHEREAS, the Board of Directors of the Company has recently engaged the
investment banking firm of Imperial Capital, LLC to explore various strategic
and financial alternatives for maximizing shareholder value on a near-term
basis, including, but not limited to, a possible transaction or series of
transactions representing a merger, consolidation, or any other business
combination, a sale of all or a substantial amount of the business, securities,
or assets of the Company, or a recapitalization or spin-off;
WHEREAS, the consideration of any such transaction by the Board of
Directors has led to uncertainty regarding the future path of the Company and
the long-term prospects for executive employment with the Company and its
subsidiaries;
WHEREAS, the Company's Board of Directors believes it is important to
the enhancement of shareholder value that, notwithstanding such uncertainty,
Employee act vigorously and constructively in connection with any negotiations
being conducted regarding any such transaction to achieve the results most
favorable to the Company's shareholders and to continue to manage the on-going
business of the Company in order to achieve the most positive results
attainable; and
WHEREAS, as an inducement for Employee to remain in the employ of the
Company during this period of uncertainty, this Agreement provides for certain
incentives for Employee upon a change in control and for certain severance
benefits to be paid and provided to Employee in the event Employee's employment
is terminated at any time.
NOW, THEREFORE, in consideration of the above premises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:
1. Term. The term of this Agreement shall commence on April 1, 2000 and
shall continue until Employee's employment has been terminated (by the Company
or by Employee) and all obligations under this Agreement have been met.
2. Change in Control.
A. For the purposes of this Agreement only, the term "Change
in Control" shall mean the occurrence of any one of the following events on or
before December 31, 2000:
(i) Any person or group (a "Person"), within the
meaning of Sections 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), acquiring
"beneficial ownership" ("Beneficial Ownership"), as defined in
Rule 13d-3 under the Exchange Act, of securities of the
Company representing more than fifty percent (50%) of the
combined voting power of the Company's then outstanding
securities; provided, however, in determining whether a Change
in Control has occurred, voting securities which are acquired
in a "Non-Control Acquisition" (as hereinafter defined) shall
not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition
by (a) an employee benefit plan (or trust forming a part
thereof) maintained by the Company or any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interests is owned, directly or
indirectly, by the Company (for purposes of this definition, a
"Subsidiary"), (b) the Company or its Subsidiaries, or (c) any
Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(ii) A merger, consolidation or reorganization
(collectively, a "Transaction") involving the Company unless
such Transaction is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a Transaction involving
the Company where:
(a) The stockholders of the Company
immediately before such Transaction own, directly or
indirectly, immediately following such Transaction,
at least fifty percent (50%) of the combined voting
power of the outstanding voting securities of the
corporation resulting from such Transaction (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the voting
securities of the Company immediately before such
Transaction, or
(b) No Person, other than (1) the Company,
(2) any Subsidiary, or (3) any employee benefit plan
(or any trust forming a part thereof) maintained by
the Company or any Subsidiary, has Beneficial
Ownership of more than fifty percent (50%) of the
combined voting power of the Surviving Corporation's
then outstanding voting securities;
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Subsidiary of the Company) and/or
the sale or other disposition of the Company's subsidiary PLM
Financial Services, Inc. (through an asset sale or stock sale)
to any Person (other than a transfer to a Subsidiary of the
Company); provided, however, that in no event shall the sale
or other disposition of the Company's subsidiary American
Finance Group, Inc. (AFG) by itself, or the sale or other
disposition of the Company's trailer leasing business (through
a sale of substantially all of the Company's trailer assets
and/or sale of the stock of the Company's subsidiary PLM
Rental, Inc.) (Trailer Leasing) by itself, be deemed to be a
sale or other disposition of all or substantially all of the
assets of the Company for the purposes of this Agreement; and
further provided, that the sale or other disposition of AFG or
the sale or other disposition of Trailer Leasing, followed by
the sale or other disposition of Trailer Leasing (in the case
of an earlier sale or disposition of AFG) or AFG (in the case
of an earlier sale or disposition of Trailer Leasing), shall
be deemed to be a sale or other disposition of all or
substantially all of the assets of the Company; or
(iv) The stockholders of the Company approve a plan
of dissolution or liquidation of the Company.
B. In the event that a Change in Control transaction as
defined in this Agreement occurs, and such transaction is also deemed to be a
Change in Control as defined in and under the Employment Agreement (the
"Employment Agreement") dated as of December 12, 1992 between the Company and
Employee (specifically, a majority of the members of the Continuing Directors of
the Board of Directors of the Company does not approve the Change in Control
event specifically for purposes of the Employment Agreement), then the terms and
conditions of the Employment Agreement, including but not limited to Sections
10.2, 11, 12 and 13 thereof, shall govern and supercede this Agreement.
3. Acceleration and Vesting.
A. Stock Options and Grants.
(i) Upon the occurrence of a Change in Control, any
and all options to purchase stock and grants of stock (common
or otherwise) in the Company granted to Employee pursuant to
any plan or otherwise, including options granted pursuant to
the 1988 Management Stock Compensation Plan and/or the 1998
Management Stock Compensation Plan, and any and all grants of
stock in the Company granted to Employee pursuant to the 1996
Mandatory Management Stock Bonus Plan (collectively, any or
all of these plans shall be referred to herein as the "Stock
Plans"), shall become immediately accelerated and fully vested
and any restrictions on such options and grants shall, to the
extent permissible under applicable securities laws, fully
lapse. The Company shall endeavor to cause any restrictions on
the options or grants not lapsed by operation of this Section
3(A)(i) to so lapse.
(ii) Upon the vesting of all such options and grants
pursuant to Section 3(A)(i) or Section 6(C)(ii) below and, in
the case of options, so long as such options have not expired,
Employee may elect by written notice to the Company at any
time following such vesting that the Company "cash-out" such
options and/or grants by paying to Employee within five (5)
days of such notice the value of the options and/or grants so
long as Employee surrenders to the Company, and agrees to the
cancellation of, the options or grants. The value of the
options and/or grants shall be calculated as follows: (a) in
the event that the Change in Control is a result of a tender
offer and so long as Employee provides his "cash-out" notice
to the Company within 30 days of the conclusion of the tender
offer, then Employee shall be paid the per share price paid to
the Company's shareholders in connection with such tender
offer, or (b) in all other circumstances, the Employee shall
be paid the average daily closing price of the common stock of
the Company for the ten trading days immediately preceding the
date of Employee's "cash-out" notice, less in the case of both
(a) and (b) for the cash-out options, the exercise price of
the option. In the event Employee does not elect to "cash-out"
pursuant to this Section 3(A)(ii), then Employee's rights
regarding such options and grants shall be as set forth in the
respective Stock Plans and agreements governing such options
and grants, except that Employee shall be deemed to be fully
vested and any restrictions on such options and grants shall
remain fully lapsed.
B. Executive Deferred Compensation Agreement. In the event of
a Change in Control as defined in this Agreement, a Change in Control of the
Company shall also be deemed to have occurred for the purpose of Section 10.1 of
the Executive Deferred Compensation Agreement (the "Executive Deferred
Compensation Agreement") dated as of December 18, 1992 between the Company and
Employee, so that effective with the occurrence of the Change in Control,
Employee shall be treated for purposes of the Executive Deferred Compensation
Agreement as if Employee had attained age 60 on the first day of the second
calendar month preceding the calendar month in which the Change in Control of
the Company occurs, and Employee's Vesting Factor under Section 1.4 of the
Executive Deferred Compensation Agreement shall become and forever thereafter
remain 1.
4. Termination by the Company .
A. In the event that Employee's employment is terminated by
the Company at any time on or after a Change in Control for a reason other than
Cause or Disability, the Company shall pay Employee the Severance Benefits
specified in Section 6(C).
B. In the event that Employee's employment is terminated by
the Company at any time prior to a Change in Control for a reason other than
Cause or Disability, the Company shall pay Employee the Severance Benefits
specified in Section 6(D).
C. For purposes of this Agreement, "Cause" shall be limited
to:
(i) The willful and continued failure by Employee to
perform his day to day responsibilities substantially in the
same manner as performed prior to the Change in Control (other
than any failure resulting from Employee's incapacity due to
physical or mental illness), which has not been cured within
ten (10) days after written demand for substantial performance
is delivered by the Company to Employee, which demand
specifically identifies the manner in which Employee has not
substantially performed his day to day responsibilities. The
financial condition of the Company (including any subsidiary,
division or department thereof), and/or Employee's
contribution thereto, shall not be considered for the purposes
of determining whether Employee has willfully failed to
perform his day to day responsibilities;
(ii) A willful and intentional act or omission by
Employee which is, in the reasonable determination of the
Company, materially injurious to the Company, monetarily or
otherwise. For purposes of subsection (i) above and this
subsection (ii), no act or omission on Employee's part shall
be considered willful and intentional unless done, or omitted
to be done, by him not in good faith and without the
reasonable belief that his action(s) or omission(s) was in the
best interests of the Company; or
(iii) The conviction of Employee of, or his admission
or plea of nolo contendere to, a crime involving an act of
moral turpitude, which is a felony or which results or is
intended to result, directly or indirectly, in gain or
personal enrichment of Employee, relatives of Employee, or
their affiliates at the expense of the Company;
provided, however, that, notwithstanding anything to the contrary contained in
this Section 4(B), "Cause" shall not be deemed to include a refusal by Employee
to execute any certificate or document that Employee in good faith determines
contains any untrue statement of a material fact.
D. For the purposes of this Agreement, Disability shall mean
if, as a result of Employee's incapacity due to physical or mental illness,
Employee shall have been absent or substantially absent from his duties
hereunder for a period of six (6) consecutive months, and within thirty (30)
days after a Notice of Termination (as hereinafter defined) is given, which
Notice of Termination may be given before or after the end of such six month
period, Employee shall not have returned to the performance of his duties
hereunder on a full-time basis, Employee's employment shall terminate upon the
expiration of such thirty (30) days. Employee's absence or substantial absence
from his duties will be treated as resulting from incapacity due to physical or
mental illness if Employee is "totally disabled from his own occupation." Total
disability from Employee's own occupation will exist where (i) because of
sickness or injury, Employee cannot perform the important duties of his
occupation, (ii) Employee is either receiving Doctor's Care or has furnished
written proof acceptable to the Company that further Doctor's Care would be of
no benefit, and (iii) Employee does not work at all. Doctor's Care means regular
and personal care of a Doctor which, under prevailing medical standards, is
appropriate for the condition causing the disability.
5. Termination by Employee.
A. Employee may terminate his employment during the term of
this Agreement upon thirty (30) days' Notice of Termination to the Company for
any reason. If Employee terminates his employment hereunder subsequent to a
Change in Control and such termination is made for any of the reasons listed in
Section 5(B) (such reason(s) to be detailed in the Notice of Termination), such
termination shall be deemed to have been done for good reason ("Good Reason")
and the Company shall pay Employee the Severance Benefits specified in Section
6(C), below.
B. Reasons constituting "Good Reason" shall include:
(i) Any breach by the Company of any material
provision of this Agreement which has not been cured within
ten (10) days after written notice detailing such
non-compliance is given by Employee to the Company;
(ii) Any demonstrable and material diminution of the
base compensation, duties, responsibilities, authority or
powers of Employee as they relate to any positions or offices
held by Employee during the term of this Agreement; provided
that Employee provides a reasonable description of any such
diminution(s) and a statement that Employee finds, in good
faith, such diminution to be a material diminution and that,
as such, he/she elects to terminate his employment hereunder
for Good Reason. Notwithstanding the foregoing, neither a
reduction in the staff of the Company following a Change in
Control which results in the Employee taking on additional
responsibilities nor a phase-out of the Company's management
of marine operations shall be considered a diminution of the
duties, responsibilities, authority or powers of Employee for
the purposes of this Agreement;
(iii) The failure of the Company to include Employee
in any employee benefit plan or incentive compensation plan
for which Employee has previously participated or would
reasonably expect to participate in. Employee may reasonably
expect to participate in a benefit plan or incentive
compensation plan if, without limitation, other employees of
the Company with similar titles, levels of responsibilities or
salaries participate or have participated in such plan.
Notwithstanding the foregoing, (a) to the extent not otherwise
determined pursuant to the incentive compensation plan, the
Board of Directors shall have the sole discretion to determine
the amount of such bonus, or incentive compensation, if any,
and (b) the Company may change the terms of any benefit plan
so long as such changes occur pursuant to a program applicable
to all employees or executives of the Company and do not
result in a proportionately greater reduction in the rights of
or benefits to the Employee as compared with any other
employee or executive of the Company; or
(iv) Any requirement by the Company that Employee
relocate his primary business office to a geographical area
greater than twenty (20) miles from the Company 's principal
executive offices as existing on April 1, 2000, or if Employee
is based in an office other than the Company's principal
executive offices, twenty (20) miles from the Company's office
where Employee is based as of April 1, 2000.
C. In the event Employee terminates his employment for Good
Reason and the Company disputes that the termination was for Good Reason, the
Company shall have the burden of proving that any such reason was not "Good
Reason".
6. Compensation Upon Termination.
A. Termination For Cause. If Employee's employment is
terminated for Cause as defined in this Agreement, the Company shall pay
Employee his full Base Salary (and any accrued but unused vacation and personal
days) through the Date of Termination at the rate in effect at the time Notice
of Termination is given, and the Company shall have no further obligations to
Employee under this Agreement. The Employment Agreement shall also be terminated
as of the Date of Termination, and neither party shall have any further rights
or obligations thereunder. The rights, limitations and obligations of each of
the Employee and the Company under any other agreement or plan, including but
not limited to any stock option plan, stock grant plan, deferred compensation
plan and related agreement(s), each as may have been modified by the terms of
this Agreement, shall remain in full force and effect.
B. Termination for Disability. If Employee's employment is
terminated for Disability as defined in this Agreement, the Company shall pay to
Employee his full Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given. The Company shall also pay to
Employee any accrued but unused vacation and personal days, and the Company
shall also provide benefits to Employee pursuant to the standard policy of the
Company with respect to terminated disabled employees. The Employment Agreement
shall also be terminated as of the Date of Termination, and neither party shall
have any further rights or obligations thereunder. The rights, limitations and
obligations of each of the Employee and the Company under any other agreement or
plan, including but not limited to any stock option plan, stock grant plan,
deferred compensation plan and related agreement(s), each as may have been
modified by the terms of this Agreement, shall remain in full force and effect.
C. Termination By Company Without Cause On or After a Change
in Control or Termination by Employee For Good Reason Following a Change in
Control. If, (a) at any time on or after a Change in Control the Company
terminates Employee's employment hereunder other than for Cause or Disability,
or (b) subsequent to a Change in Control Employee terminates his employment for
Good Reason, the Company shall, in addition to paying Employee his full Base
Salary through the Date of Termination at the rate in effect at the time the
Notice of Termination is given and any accrued but unused vacation and personal
days (as required by law), pay to Employee within seven (7) business days of the
Date of Termination, and provide to Employee, the following severance benefits:
(i) The Company shall pay to Employee an amount equal
to twenty four (24) months of Employee's annual base salary at
the highest rate in effect during the twelve (12) months
immediately preceding the Date of Termination, less customary
payroll deductions, such payment to be made at Employee's
option either in a lump sum, or in semi-monthly installments
(starting on the first regularly scheduled payday following
the Date of Termination, and continuing on each regularly
scheduled payday thereafter until paid). In the event Employee
fails to notify the Company of his option, the amount shall be
paid in a lump sum;
(ii) Any and all options to purchase stock (common or
otherwise) in the Company granted to Employee following a
Change in Control pursuant to any plan or otherwise, and any
and all grants of stock in the Company granted to Employee
following a Change in Control pursuant to any plan or
otherwise, shall become immediately accelerated and fully
vested and any restrictions on such options, grants or
equivalent or similar rights shall, to the extent permissible
under applicable securities laws, fully lapse. The Company
shall endeavor to cause any restrictions on the options,
grants or equivalent or similar rights not lapsed by operation
of this Section 6(C)(ii) to so lapse. Employee shall have the
same rights in such accelerated and vested options and grants
as provided in Section 3(A)(ii) and the Company shall pay to
Employee the value of the options and/or grants upon receipt
of Employee's written notice of his election to "cash-out"
pursuant to Section 3(A)(ii); and
(iii) At the Employee's election by written notice to
the Company made within five (5) business days following the
Notice of Termination, the Company shall pay to Employee in a
lump sum the total amount of any Monthly Executive
Compensation Benefit payments that are payable under the
Executive Deferred Compensation Agreement, which amount shall
have been determined pursuant to the terms of Sections 5(a)
and 5(b) of the Executive Deferred Compensation Agreement
after taking into consideration the automatic acceleration of
vesting as provided in Section 10.1 (including Section 10.1(a)
and 10.1(b)) of the Executive Deferred Compensation Agreement.
In the event Employee is paid his executive deferred
compensation in a lump sum as provided in this Section
6(C)(iii), the Executive Deferred Compensation Agreement shall
be terminated and of no further force or effect. In the event
Employee does not elect to receive a lump sum payment of his
executive deferred compensation, then the Monthly Executive
Compensation Benefit payments that are payable under the
Executive Deferred Compensation Agreement shall be paid
pursuant to the terms of that agreement, which shall remain in
full force and effect; and
(iv) Employee shall continue to participate in all
life insurance, medical, health, dental and disability plans,
programs or arrangements ("Insurance Plans") in which Employee
participated immediately prior to the Date of Termination on
the same terms as Employee participated immediately prior to
the Date of Termination for the shorter period of (a) twenty
four (24) months from the Date of Termination or (b)
Employee's commencement of full time employment with a new
company that provides Employee with benefits at least as
favorable as those provided by the Company; provided that
Employee's continued participation is possible under the
general terms and provisions of such plans and programs and
Employee will continue to be obligated to pay the same
employee portion of any premium and any deductible and/or
co-payments associated with such insurance Plans as was
required immediately prior to the Date of Termination.
Employee's right to continued group benefits after any period
covered by the Company will be determined in accordance with
federal and state law.
(v) The payments and benefits provided for in this
Section 6(C) are in addition to, and shall not be deemed to be
in lieu of, any other payments and/or benefits to which
Employee is entitled, including without limitation any and all
payments and benefits under the PLM International, Inc. 401K
and Profit Sharing Plan and any other insurance and disability
plans.
D. Termination By Company Without Cause Prior to a Change in
Control. If, prior to a Change in Control the Company terminates Employee's
employment hereunder other than for Cause or Disability, the Company shall, in
addition to paying Employee his full Base Salary through the Date of Termination
at the rate in effect at the time the Notice of Termination is given and any
accrued but unused vacation and personal days (as required by law), pay to
Employee within seven (7) business days of the Date of Termination, and provide
to Employee, the following severance benefits:
(i) The Company shall pay to Employee an amount equal
to twenty four (24) months of Employee's annual base salary at
the highest rate in effect during the twelve (12) months
immediately preceding the Date of Termination, less customary
payroll deductions, such payment to be made at Employee's
option either in a lump sum, or in semi-monthly installments
(starting on the first regularly scheduled payday following
the Date of Termination, and continuing on each regularly
scheduled payday thereafter until paid). In the event Employee
fails to notify the Company of his option, the amount shall be
paid in a lump sum; and
(ii) Employee shall continue to participate in all
life insurance, medical, health, dental and disability plans,
programs or arrangements ("Insurance Plans") in which Employee
participated immediately prior to the Date of Termination on
the same terms as Employee participated immediately prior to
the Date of Termination for the shorter period of (a) twenty
four (24) months from the Date of Termination or (b)
Employee's commencement of full time employment with a new
company that provides Employee with benefits at least as
favorable as those provided by the Company; provided that
Employee's continued participation is possible under the
general terms and provisions of such plans and programs and
Employee will continue to be obligated to pay the same
employee portion of any premium and any deductible and/or
co-payments associated with such insurance Plans as was
required immediately prior to the Date of Termination.
Employee's right to continued group benefits after any period
covered by the Company will be determined in accordance with
federal and state law.
(iii) The payments and benefits provided for in this
Section 6(D) are in addition to, and shall not be deemed to be
in lieu of, any other payments and/or benefits to which
Employee is entitled (including without limitation any and all
payments and benefits under the PLM International, Inc. 401K
and Profit Sharing Plan and any other insurance and disability
plans), and the rights, limitations and obligations of each of
the Employee and the Company under any other agreement or plan
(including but not limited to any stock option plan, stock
grant plan, deferred compensation plan and related
agreement(s), each as may have been modified by the terms of
this Agreement) shall remain in full force and effect.
E. Other Termination by Employee. If (a) prior to a Change in
Control Employee terminates his employment for any reason, or (b) following a
Change in Control Employee terminates his employment for any reason other than
Good Reason, the Company shall pay to Employee his full Base Salary through the
Date of Termination at the rate in effect at the time Notice of Termination is
given and any accrued but unused vacation and personal days, and the Company
shall have no further obligations to Employee under this Agreement. The
Employment Agreement shall also be terminated as of the Date of Termination, and
neither party shall have any further rights or obligations thereunder. The
rights, limitations and obligations of each of the Employee and the Company
under any other agreement or plan, including but not limited to any stock option
plan, stock grant plan, deferred compensation plan and related agreement(s),
each as may have been modified by the terms of this Agreement, shall remain in
full force and effect.
F. Section 280G. Notwithstanding any other provisions of this
Agreement or any other agreement between the Company and the Employee, in the
event that any payment or benefit received or to be received by the Employee in
connection with a Change in Control or the termination of the Employee's
employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company or any Person whose actions result in
a Change in Control or any Person affiliated with the Company or such Person)
(all such payments and benefits, including the severance benefits provided
hereunder, being hereinafter called "Total Payments") would not be deductible
(in whole or part), by the Company, an affiliate or Person making such payment
or providing such benefit as a result of section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), then, to the extent necessary to make
such portion of the Total Payments deductible (and after taking into account any
reduction in the Total Payments provided by reason of section 280G of the Code
in such other plan, arrangement or agreement), the benefits provided hereunder
shall be reduced (if necessary, to zero); provided, however, that,
notwithstanding the terms of any other plan or agreement, the Employee may elect
to have the benefits payable under any other plan or agreement reduced (or
eliminated) prior to any reduction of the benefits payable under this Agreement,
which may include, in the case of the Executive Deferred Compensation Agreement,
an election to reduce the Employee's Compensation Period under the Executive
Deferred Compensation Agreement (without increasing the amount determined under
Section 1.1 of the Executive Deferred Compensation Agreement as Employee's
Monthly Deferred Compensation Benefit).
(i) For purposes of this limitation in the event the
Company asserts that the limitation would apply, (a) no
portion of the Total Payments the receipt or enjoyment of
which the Employee shall have waived at such time and in such
manner as not to constitute a "payment" within the meaning of
section 280G(b) of the Code shall be taken into account, (b)
no portion of the Total Payments shall be taken into account
that, in the opinion of tax counsel ("Tax Counsel") selected
by the Employee and reasonably accepted by the Company, does
not constitute a "parachute payment" within the meaning of
section 280G(b)(2) of the Code, including by reason of section
280G(b)(4)(A) of the Code, (c) the benefits payable under this
Agreement shall be reduced only to the extent necessary so
that the Total Payments (other than those referred to in
clauses (a) or (b)) in their entirety constitute reasonable
compensation for services actually rendered within the meaning
of section 280G(b)(4)(B) of the Code or are otherwise not
subject to disallowance as deductions by reason of section
280G of the Code, in the opinion of Tax Counsel, and (d) the
value of any noncash benefit or any deferred payment or
benefit included in the Total Payments shall be determined in
accordance with the principles of sections 280G(d)(3) and (4)
of the Code.
(ii) If it is established pursuant to a final
determination of a court or an Internal Revenue Service
proceeding that, notwithstanding the good faith of the
Employee and the Company in applying the terms of this Section
6(F), the Total Payments paid to or for the Employee's benefit
are in an amount that would result in any portion of such
Total Payments being subject to the Excise Tax, then, if such
repayment would result in (a) no portion of the remaining
Total Payments being subject to the Excise Tax and (b) a
dollar-for-dollar reduction in the Employee's taxable income
and wages for purposes of federal, state and local income and
employment taxes, the Employee shall have an obligation to pay
the Company upon demand an amount equal to the sum of (x) the
excess of the Total Payments paid to or for the Employee's
benefit over the Total Payments that could have been paid to
or for the Employee's benefit without any portion of such
Total Payments being subject to the Excise Tax; and (y)
interest on the amount set forth in clause (x) of this
sentence at the rate provided in section 1274(b)(2)(B) of the
Code from the date of the Employee's receipt of such excess
until the date of such payment.
(iii) By execution and delivery of this Agreement,
the provisions of Section 10.4 of the Executive Deferred
Compensation Agreement are hereby superseded and such section
is hereby declared null and void.
7. Mitigation. Employee shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other
employment or otherwise and, except as otherwise provided in Section 6(C)(iv) or
6(D)(ii), no payment or benefit provided for in this Agreement shall be reduced
by any compensation earned by Employee as the result of employment by another
employer after the termination of his employment with the Company.
8. Other Definitions. The following definitions shall apply for
purposes of this Agreement:
A. Notice of Termination. Any purported termination by the
Company or by Employee shall be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon. Any purported termination of Employee's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of this paragraph shall not be effective.
B. Date of Termination. "Date of Termination" shall mean, as
applicable, (a) if Employee's employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that Employee shall not
have returned to the performance of his duties on a full-time basis during such
thirty (30) day period), (b) the date specified in the Notice of Termination in
compliance with the terms of this Agreement, or (c) if no date is specified, the
date on which a Notice of Termination is given.
9. Successors; Binding Agreement.
A. The Company shall require any successors or assigns
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent as if they were an original party hereto, and this Agreement shall inure
to the benefit of any such successor or assign.
B. This Agreement shall inure to the benefit of and be
enforceable by Employee's executors, administrators, successors, heirs,
distributes, devisees and legatees.
10. Other Agreements. Except as expressly set forth herein, nothing in
this Agreement is intended to alter the obligations of the Company and/or the
Employee in connection with any other written agreement between the Company and
the Employee.
11. Miscellaneous.
11.1 Written notices required by this Agreement shall be delivered to
the Company or Employee in person or sent by overnight courier or certified
mail, with a return receipt requested, to the Company's registered address and
to Employee's last shown address on the Company's records, respectively. Notice
sent by certified mail shall be deemed to be delivered two days after mailing,
and all other notices shall be deemed to be delivered when received.
11.2 This Agreement contains the full and complete understanding of the
parties regarding the subject matter contained herein and supersedes all prior
representations, promises, agreements and warranties, whether oral or written.
11.3 This Agreement shall be governed by and interpreted according to
the laws of the state of California.
11.4 The captions of the various sections of this Agreement are
inserted only for convenience and shall not be considered in construing this
Agreement.
11.5 This Agreement can be modified, amended or any of its terms waived
only by a writing signed by both parties.
11.6 If any provision of this Agreement shall be held invalid, illegal
or unenforceable, the remaining provisions of the Agreement shall remain in full
force and effect and the invalid, illegal or unenforceable provision shall be
limited or eliminated only to the extent necessary to remove such invalidity,
illegality or unenforceability in accordance with the applicable law at that
time.
11.7 If either party institutes an action to enforce the terms of this
Agreement, the prevailing party in such action shall be entitled to recover
reasonable attorneys' fee, costs and expenses.
11.8 No remedy made available to either party by any of the provisions
of this Agreement is intended to be exclusive of any other remedy. Each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder as well as those remedies existing at law, in equity, by statute
or otherwise.
IN WITNESS WHEREOF, the parties have executed this document as of the
date specified above.
PLM INTERNATIONAL, INC. EMPLOYEE
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxx
Is: President and CEO Xxxxxxx X. Xxxx
ATTEST: /s/ Xxxxxxxx Xxxxxxxx ATTEST: /s/ Xxxxxxxx Xxxxxxxx
