EXHIBIT 10.8
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of March 15, 2004 by and between
MicroFinancial Incorporated, (f/k/a Xxxxx Leasing Technologies, Inc.), a
Massachusetts corporation (the "Company") and Xxxxxxx X. Xxxxxx, (the
"Executive") currently residing at 00 Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000.
WHEREAS, Executive has served as Executive Vice President,
Chief Operating Officer and Chief Financial Officer of the Company pursuant to
an Employment Agreement dated June 12, 1998 (the " Employment Agreement"), and
was subsequently elected by the Board of Directors ("Board") as President and
Chief Executive Officer of the Company; and
WHEREAS, the Company desires to continue to employ Executive,
to enter into this Amended and Restated Employment Agreement embodying the terms
of such continued employment, and to modify certain terms of the Employment
Agreement to reflect changes in the Executive's title and responsibilities (the
"Agreement"); and
WHEREAS, Executive desires to accept such continued employment
and enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
parties agree as follows:
1. Term of Employment. Subject to the provisions of Section 7,
Executive shall be employed by the Company pursuant to the terms and conditions
of this Agreement for a period commencing on March 15, 2004 (the "Commencement
Date") and ending March 15, 2005; provided that such period shall be
automatically extended for one (1) year on March 15, 2005 and March 15th of any
succeeding year unless a minimum of six (6) months prior notice of termination
of this Agreement is given by either party to the other. The period beginning on
the
Commencement Date and ending March 15, 2005, or upon the expiration of any
renewal period, in either case in accordance with the foregoing provision, shall
be referred to as the "Employment Term".
2. Position. (a) The Executive shall continue to serve the
Company with the title of President and Chief Executive Officer , or such other
title as the Board may from time to time determine, and in the event of an
internal corporate restructuring, shall serve in a position or positions of
comparable authority and responsibility in any resulting entity. In such
position or positions, Executive shall have such duties and authority as shall
be determined from time to time by the Board which duties and responsibilities
shall not be less than those for which the Executive was responsible on the
Commencement Date.
(b) During the Employment Term, Executive will devote
substantially all of his business time and best efforts to the performance of
his duties hereunder and will not engage in any other business, profession or
occupation for compensation or otherwise which would conflict with the rendition
of such services either directly or indirectly, without the prior written
consent of the Board.
3. Base Salary. The Company shall pay Executive an annual base
salary (the "Base Salary") at the rate on the Commencement Date of $260,000
payable in arrears in substantially equal installments not less frequently than
monthly during the Employment Term in accordance with the Company's payroll
practices. The Company shall increase (but not decrease) the Base Salary on each
January 1 which occurs during the Employment Term after March 15, 2004 by a
percentage equal to the percentage increase in the Consumer Price Index for all
Urban Consumers for the Northeast Region, class B metropolitan area, for the
twelve (12) month period
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ending on each such January 1. In addition to any automatic increases hereunder,
the Board may, at any time, increase Executive's Base Salary in its sole
discretion.
4. Incentive Compensation. (a) With respect to each fiscal year
during all of which Executive is employed with the Company, including the fiscal
year beginning January 1, 2004, Executive shall also be eligible to participate
in the Company's annual bonus program as such program may be modified by the
Board.
(b) With respect to each performance period during which
Executive is employed by the Company, including the performance period beginning
January 1, 2004, the Executive shall also be eligible to participate in the
Company's profit-sharing plan as such plan may be modified by the Board.
(c) Executive shall be eligible to participate in the
1998 Equity Incentive Plan, and any other equity plan adopted by the Company
(collectively "Option Plans"), at a level consistent with his position and
responsibilities.
5. Employee Benefits. (a) Executive shall continue to be provided
employee benefits (including fringe benefits and other perquisites, profit
sharing plan participation and life, health, accident and disability insurance)
(collectively "Employee Benefits") on terms no less favorable in the aggregate
(except for any changes thereto required to comply with changes in applicable
law) than those benefits which were provided to Executive by the Company
immediately prior to the Commencement Date, except as otherwise required
hereunder.
(b) The Board shall determine the amount of the payments,
if any, to be awarded to the Executive under the Company's annual bonus program
and/or profit-sharing plan pursuant to their terms for the 2003 fiscal year and
for which payments have not been made prior to the Commencement Date.
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(c) Executive shall be entitled to a maximum of six (6)
weeks annual vacation, in accordance with the Company's current vacation
policies.
6. Business Expenses. Reasonable travel, entertainment and other
business expenses incurred by Executive in the performance of his duties
hereunder shall be reimbursed by the Company in accordance with Company
policies.
7. Termination. This Agreement, and Executive's employment may be
terminated by either party at any time pursuant to the terms and conditions set
forth herein. In the event of any such termination, Executive's rights and
entitlements shall be determined in accordance with the following provisions.
(a) For Cause by the Company. The provisions of this
Section 7(a) shall apply in the event that Executive's employment hereunder is
terminated by the Company for "Cause". For purposes of this Agreement, "Cause"
shall mean (i) Executive's willful and continued failure substantially to
perform his duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness), (ii) the willful commission by
Executive of acts that are dishonest and demonstrably injurious to the Company,
or (iii) an act or acts on Executive's part constituting a felony under the laws
of the United States or any state thereof. If Executive is terminated for Cause,
he shall be entitled to receive his Base Salary through the date of termination,
and any accrued but unpaid amounts earned under any bonus program or
profit-sharing plan. All other benefits due Executive following Executive's
termination of employment pursuant to this Section 7(a) shall be determined in
accordance with the plans, policies and practices of the Company at the time of
such termination. Any Notice of Termination (as defined in subsection (i) of
this Section 7), communicating the termination of Executive's employment
pursuant to this Section 7(a) shall include a copy of a resolution duly
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adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for that
purpose (after reasonable notice to Executive and reasonable opportunity for
Executive, together with Executive's counsel, to be heard before the Board prior
to such vote), finding that in the good faith opinion of the Board that any
event constituting Cause for termination in accordance with this Section 7(a)
has occurred and specifying the particulars thereof in detail.
(b) Disability. The provisions of this Section 7(b) shall
apply in the event that Executive's employment terminates on account of
"Disability". For purposes of this Agreement, "Disability" shall mean
Executive's physical or mental incapacity, which results in his inability to
perform his duties for a period of six (6) consecutive months. Any question as
to the existence of the Disability of Executive as to which Executive and the
Company cannot agree, shall be determined in writing by a qualified independent
physician mutually acceptable to Executive and the Company.
In the event of the Disability of Executive, the Company may terminate
the employment of Executive, by delivery of a Notice of Termination to the
Executive which Notice shall be effective not less than thirty (30) days after
the giving of such Notice. Upon termination of Executive's employment hereunder
as a result of Disability, Executive shall receive his Base Salary for a period
of twelve (12) months following such termination, and any and all accrued but
unpaid amounts earned by Executive under the annual bonus program or
profit-sharing plan as of the date of Disability. Any payments provided for in
this Section 7(b) shall be offset (but not below zero) by any payment of
disability benefits in lieu of Base Salary received by Executive under the
Company's employee benefit plans as then in effect. In addition, all options
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or other awards issued under the Option Plans shall become fully vested and
exercisable as of the date of Disability.
(c) Death. Upon termination of Executive's employment
hereunder as a result of Executive's death, Executive's estate shall receive his
Base Salary at the rate in effect at the time of Executive's death for a period
of twelve (12) months following his death, and any and all accrued but unpaid
amounts earned by Executive under the Company's annual bonus program or
profit-sharing plan as of the date of death. In addition, all options or awards
under the Option Plans shall become fully vested and exercisable as of the date
of death. Thereafter, the Company shall, except as provided in subsections 5(a)
and 7(g) hereof, have no further obligation to compensate Executive under this
Agreement.
(d) Without Cause by the Company. If Executive's
employment is terminated by the Company (including a termination of this
Agreement by means of six (6) months prior notice of termination by the Company
as provided in Section 1 hereof) without "Cause" (other than by reason of
Disability or death), Executive shall receive, as promptly as practicable
following such termination, but in any event not later than ten (10) business
days following such termination, a lump sum payment in cash equal to the sum of:
(i) if not theretofore paid, the Executive's Base Salary
through the date of termination at the rate in effect on the
date of termination or, if higher, at the highest rate in
effect at any time within the 90-day period preceding the
Commencement Date; and
(ii) the product of (x) the annual bonus paid to the Executive
for the last full fiscal year ending during the Employment
Term and (y) the fraction obtained by dividing (a) the number
of days between the Commencement Date and the last day of the
last full fiscal year ending during the Employment Term and
(b) 365; and
(iii) in the case of compensation previously deferred by the
Executive, all amounts of such compensation previously
deferred and not yet paid by the Company.
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Executive shall in addition receive an amount equal to three (3) times
the Executive's annual Base Salary at the rate in effect at the time Notice of
Termination was given, or if higher, at the highest rate in effect at any time
within the ninety (90) day period preceding the Commencement Date. Such amount
shall be paid to Executive in two (2) equal payments, on the first and second
anniversaries, respectively, of the Executive's date of termination.
No option or other award granted to Executive under the Option Plans
shall terminate prior to the expiration of the option term or award period
without regard to a termination of employment.
(e) For Good Reason By Executive. The provisions of this
Section 7(e) shall apply in the event that the Executive terminates his
employment with the Company for "Good Reason". For purposes of this Agreement,
"Good Reason" means (without Executive's express prior written consent):
(i) The assignment to Executive by the
Company of duties inconsistent with Executive's positions,
duties, responsibilities, titles or offices, or any removal
of Executive from or any failure to re-elect Executive to
any of such positions, except in connection with the
termination of Executive's employment for Cause, Disability,
or as a result of Executive's death or by Executive other
than for Good Reason;
(ii) A reduction by the Company in
Executive's Base Salary as in effect at the Commencement
Date, as the same may be increased according to the terms of
this Agreement;
(iii) A relocation of the Company's
principal executive offices to a location outside of the
metropolitan Boston, Massachusetts area or the Company's
requiring Executive to be based anywhere other than the
Company's principal executive offices, except for required
travel on the Company's business to an extent substantially
consistent with Executive's business travel obligations at
the Commencement
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Date, or any material reduction or adverse change in the
emoluments or perquisites of office provided to the
Executive at the Commencement Date;
(iv) A failure by the Company to
continue in effect fringe benefits and benefit or
compensation plans or agreements (including but not limited
to any profit sharing, bonus, life insurance, health,
accidental death or dismemberment or disability plan, or
this Agreement) with terms which in the aggregate are as
favorable as those fringe benefits and plans or agreements
to which Executive is entitled or in which Executive is
participating, as the case may be, at the Commencement Date
(or in the case of fringe benefits or plans granted or
adopted, as the case may be, after the date hereof and
providing a type of benefit not provided by the Company at
the Commencement Date, at the respective dates of grant or
adoption of such fringe benefits or plans); or
(v) The failure by the Company to
obtain the specific assumption of this Agreement by any
successor or assign of the Company or any person acquiring a
substantial portion of the assets of the Company, or,
following any such assumption, assignment or acquisition by
an entity other than an affiliate of the Company, the
occurrence of any event Executive believes will impair his
duties under this Agreement.
If Executive terminates his employment for "Good Reason", Executive shall be
entitled to the same payments he would have received if his employment had been
terminated by the Company without "Cause", as set forth in subsection 7(d)
hereof.
(f) Gross-up Payments. In the event that Executive
receives any payments under this Agreement, or other payments subject to Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), which are
considered "excess parachute payments" as defined in Section 280G of the Code,
the Company shall make an additional gross-up payment to Executive in an amount
which results in Executive being in the same after-tax position that he would
have been in had no excise tax under Code Section 4999 been imposed.
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(g) Without Good Reason by Executive. If Executive
voluntarily terminates his employment with the Company for any reason other than
"Good Reason", Executive shall be entitled to the same payments he would have
received if his employment had been terminated by the Company for Cause, as set
forth in subsection 7(a) hereof.
(h) Continuation of Benefits. Upon the termination of
Executive's employment other than as a result of death or for Cause, in addition
to any amounts due under Section 5(a) and (b) hereof and Sections (a) through
(f) of this Section 7, the Company shall provide Executive with a continuation
of those benefits denoted by an asterisk on Exhibit A hereto until the earlier
of Executive's death or 65th birthday; provided, however, that in the event that
Executive obtains other substantially comparable employment during such period,
Executive shall notify the Company and the amount of any benefits to which
Executive is entitled under this Section 7(h) shall be reduced (but not below
zero) by any such benefits provided by Executive's new employer.
(i) Notice of Termination. Any purported termination of
employment by the Company or by Executive shall not be effective until
communicated by written Notice of Termination to the other party hereto in
accordance with Section 11(i) hereof. 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 and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
8. Noncompetition. (a) During the Employment Term, and for a two
(2) year period following termination of Executive's employment hereunder,
Executive shall not, directly or indirectly, (i) become under contract to or
associated with, employed by, render services to or
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own an interest (other than as a shareholder owning not more than a 5% interest)
in any microticket leasing business that is in competition with the Company in
the United States, (ii) solicit any officer or employee of the Company or any of
its affiliates to engage in any conduct prohibited hereby for Executive or to
terminate any existing relationship with the Company or such affiliate or (iii)
assist any other person to engage in any activity in any manner prohibited
hereby to Executive. For purposes of this Section 8(a), in the event of a
termination of employment prior to expiration of the Employment Term,
determination of the duration of the Employment Term, shall be made without
regard to the automatic renewal provisions of Section 1 hereof.
(b) It is expressly understood and agreed that although
Executive and the Company consider the restrictions contained in this Section 8
to be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
9. Confidentiality. Executive will not at any time (whether,
during or after his employment with the Company) disclose or use for his own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or
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affiliates, any trade secrets, information, data, or other confidential
information relating to customers, development programs, costs, marketing,
trading, investment, sales activities, promotion, credit and financial data,
manufacturing processes, financing methods, plans, or the business and affairs
of the Company generally, or of any subsidiary or affiliate of the Company,
provided that the foregoing shall not apply to information which is not unique
to the Company or which is generally known to the industry or the public other
than as a result of Executive's breach of this covenant. Executive agrees that
upon termination of his employment with the Company, for any reason, he will
return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in any
way relating to the business of the Company and its affiliates, except that he
may retain personal notes, notebooks and diaries. Executive further agrees that
he will not retain or use for his account at any time any trade names, trademark
or other proprietary business designation used or owned in connection with the
business of the Company or its affiliates.
10. Specific Performance. Executive acknowledges and agrees that
the Company's remedies at law for a breach or threatened breach of any of the
provisions of Sections 8 or 9 would be inadequate and, in recognition of this
fact, Executive agrees that, in the event of such a breach or threatened breach,
in addition to any remedies at law, the Company, without posting any bond, shall
be entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
11. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
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(b) Entire Agreement/Amendments. This Agreement contains
the entire understanding of the parties with respect to the subject matter
hereof and, subject to the exception noted below, supersedes any and all prior
understandings, agreements, contracts and arrangements, whether written or oral,
between the Company and Executive, including but not limited to the Prior
Employment Agreement and the Executive Performance Incentive Plan. The parties
hereto agree that as of the Commencement Date, the Prior Employment Agreement
shall be null and void and of no further force or effect and any and all current
and future obligations of either party thereunder are fully and forever
discharged. Notwithstanding anything to the contrary contained herein, this
Agreement shall in no way reduce or diminish any benefit to which Executive is
otherwise entitled and which has already accrued, or been granted, to Executive,
pursuant to the terms of a plan, program or arrangement of the Company,
including without limitation, any outstanding award granted to Executive under
the Company's Executive Performance Incentive Plan for which the performance
period has not closed (or, if closed, payment has not been made) prior to the
Commencement Date. The Executive hereby agrees to provide any consent, waiver or
other documentation necessary to give effect to this paragraph (b). This
Agreement may not be altered, modified, or amended except by written instrument
signed by the parties hereto.
(c) No Waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver of such party's rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.
(d) Severability. In the event that any one or more of
the provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity,
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legality and enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
(e) Assignment. This Agreement is personal to Executive
and without the prior written consent of the Company shall not be assignable by
Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(f) Mitigation. The Executive shall not be required to
mitigate damages or the amount of any payment provided for under this Agreement
by seeking other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by
Executive as the result of employment by another employer after the termination
of his employment hereunder or otherwise, except to the extent set forth in
Section 7(h) of this Agreement.
(g) Arbitration. Except where equitable relief is sought,
any dispute, controversy or claim arising out of or relating to this Agreement,
or the breach hereof, shall be settled by arbitration in accordance with the
rules of the American Arbitration Association by a single arbitrator. The
Arbitrator shall be an individual familiar with the leasing and finance
industry. The arbitrator's award shall be final and binding upon both parties,
and judgment upon the award may be entered in any court of competent
jurisdiction in any state of the United States or country or application may be
made to such court for a judicial acceptance o the award and an enforcement as
the law of such jurisdiction may require or allow.
(h) Successors; Binding Agreement.
(i) The Company will require any successor
(whether direct or indirect by Change of Control or otherwise) to all or
substantially all of the business and/or
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assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. Such assumption and agreement
shall be obtained prior to the effectiveness of any such succession. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise. The term "Company"
shall also mean any affiliate of the Company to which Executive may be
transferred and the Company shall cause such successor employer to be considered
the "Company" bound by the terms of this Agreement and this Agreement shall be
amended to so provide. As used in this Agreement, "Change of Control" shall
mean:
(a) The acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person"),
including an acquisition pursuant to 11 U.S.C. Section 1129 et passim, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (i) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities") or;
(b) Individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board or are divested of possession by
appointment of a trustee pursuant to Chapter 7 or 11 of the United States
Bankruptcy Code; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was
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approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board; or
(c) Approval by the shareholders of the
Company, or, in the instance of proceedings for the Company pursuant to Chapter
7 or Chapter 11 of the United States Bankruptcy Code, approval by the bankruptcy
judge, of a reorganization, merger or consolidation, in each case, unless,
following such reorganization, merger or consolidation, more than 60% of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such reorganization, merger
or consolidation, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be; or
(d) Approval by the shareholders, or, in
the instance of proceedings for the Company pursuant to Chapter 7 or Chapter 11
of the United States Bankruptcy Code, approval by the bankruptcy judge, of the
Company of (i) a complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the assets of the
Company.
(ii) The Company agrees that within three (3)
days of the entry of an order for relief with respect to the Company pursuant to
the provisions of Chapter 7 or Xxxxxxx
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00 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, it will seek approval of the bankruptcy
court having jurisdiction over its affairs for the assumption of this Agreement
pursuant to the provisions of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
(iii) This Agreement shall inure to the benefit of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amount would still be payable to Executive
hereunder if Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the devisee, legatee or other designee of Executive or, if there is no such
designee, to the estate of Executive.
(i) Notice. For the purpose of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the execution page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Board with a copy to Managing Partner, Xxxxxxx & Xxxxxx, 000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000, or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(j) Legal Fees and Expenses. The Company shall reimburse
Executive on a quarterly basis for all costs and expenses incurred by Executive
to enforce or protect his rights under this Agreement (including fees and
expenses incurred in connection with an arbitration) unless it shall ultimately
be determined by a final judgment of an arbitrator or a court of competent
jurisdiction that Executive was without any justification for commencing or
continuing any such arbitration, action or proceeding, in which case Executive
shall repay to the
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Company any amounts of reimbursement paid under this Section 11(j) and in the
event of an arbitration, shall also pay one half (1/2) of the fees of the
arbitrator.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
-----------------------------------
Xxxxxxx X. Xxxxxx
MicroFinancial Incorporated, (f/k/a
Xxxxx Leasing Technologies, Inc.
-----------------------------
By: Xxxxx X. Xxxxxxxxx
Its: Chairman of the Board of
Directors
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