EXHIBIT 10.8(f)
EXTENSION AND AMENDMENT
OF
SECOND AMENDED AND RESTATED XXXXXX X. XXXXX
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXTENSION AND AMENDMENT AGREEMENT ("Agreement") is made and entered into as
of the 27th day of June, 1997, having an "Effective Date" of October 1, 1997, by
and between Capital Associates, Inc., a Delaware corporation ("CAI") and Capital
Associates International, Inc. a Colorado corporation ("CAII") (CAI and CAII
being collectively referred to herein as the "Company") and Xxxxxx X. Xxxxx
("Lacey").
RECITALS
A. The Company and Lacey entered into that certain Second Amended and Restated
Xxxxxx X. Xxxxx Executive Employment Agreement, dated as of October 1, 1995,
which includes an Exhibit A to Second Amended and Restated Xxxxxx X. Xxxxx
Executive Employment Agreement Severance Benefits (collectively the "Lacey
Agreement") and except for those terms and conditions amended hereby, the
terms and conditions of the Lacey Agreement are hereby incorporated herein
by this reference as Exhibit A.
B. The Company and Lacey now desire to amend certain provisions of the Lacey
Agreement and extend the Lacey Agreement for an additional two (2) years
through September 30, 1999.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the covenants set forth
herein, and in the Lacey Agreement, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows.
1. ADDITIONAL LONG TERM BONUS. Section 7. of the Lacey Agreement is hereby
amended by the addition of a new second paragraph to that Section which
states:
"Lacey shall also be entitled to an additional bonus to encourage the
development and attainment of certain long term goals for the Company.
Such long term goals shall cover a period of 3, 4 or 5 fiscal years of
the Company, but shall be structured to be paid annually by setting
incremental annual goals which lead to the accomplishment of the
Company's long term goals. The long term goals, the annual incremental
goals and the each year's incremental cash bonus to be paid upon the
achievement of the annual incremental goals, shall be set forth in a
Long Term Bonus Plan developed by the Executive Committee and adopted
by the Compensation Committee. The term of the Long Term Bonus Plan
shall not be construed as extending the term of the Lacey Agreement."
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2. AUTOMOBILE ALLOWANCE. Section 8. of the Lacey Agreement is hereby amended to
provide a $1,000 per month automobile allowance.
3. "CHANGE OF CONTROL" TERMINATION. Section 2. (B) of Exhibit A to Second
Amended and Restated Xxxxxx X. Xxxxx Executive Employment Agreement
Severance Benefits is hereby amended by the addition of the following
paragraph after the third full paragraph of that Section, which states:
"In the event the continuation of employment circumstances described in
the second full paragraph of this Section 2. (B) do not occur so that
Lacey is deemed terminated due to a "Change of Control" (and other than
for cause), the termination payments contemplated and provided for in
the first full paragraph of this Section 2. (B) shall not be paid to
Lacey, and in lieu thereof, the Company shall pay to Lacey within five
(5) business days of the date of such termination, one lump sum payment
equal to 100% of Lacey's Base Salary for a two (2) year period, which
shall not be subject to any off set due to any other compensation that
Lacey may earn within the two (2) years following such termination;
provided and on the condition that Lacey agrees "not to compete"
against the Company during this two year term. The term "not to
compete" as used herein shall mean that Lacey will not engage in any
facet of the equipment leasing business in any form (except that which
is contemplated in Section 5. of this Exhibit A), and this shall
include, without limitation, that Lacey will not become a shareholder,
officer, employee or agent of any equipment leasing company or entity,
or a company or entity that owns and/or manages an equipment leasing
business, nor shall he act as an equipment leasing consultant for any
equipment leasing company or entity (other than the Company). In
addition, Lacey must comply with the obligations of Sections 6. and 7.
of this Exhibit A."
4. EXTENSION.
Section 3. of the Lacey Agreement is hereby amended by deletion of the year
"1997" in the third line and in lieu thereof the insertion of the year
"1999."
Section 5. of the Lacey Agreement is hereby amended by deletion of the year
"1997" where it appears in two places and, in lieu thereof, the insertion of
the year "1999."
5. STOCK OPTIONS. Section 12. of the Lacey Agreement is hereby amended by the
addition of a third paragraph, which states:
"As stock options are granted to the non-employee directors of the
Company under the Company's Non-Employee Director Stock Option Plan,
Xx. Xxxxx shall be granted the same quantity of stock options under the
Company's stock option plan for employees."
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6. COUNTERPARTS. The last sentence of Section 19 of the Lacey Agreement is
hereby amended by deleting the last full sentence of Section 19.
7. RATIFICATION. Except as amended by this Agreement, all other terms and
conditions of the Lacey Agreement are hereby ratified and confirmed.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date set forth next to the signatures below, to be effective on
the Effective Date.
/s/Xxxxxx Xxxxx
-------------------------------
XXXXXX X. XXXXX
Date: 7-1-97
------------------------
CAPITAL ASSOCIATES, INC.
By: /s/X. X. Xxxxxx
---------------------------
X. X. Xxxxxx
Its: Chairman of the Board
-------------------------
Date: July 1, 1997
------------------------
CAPITAL ASSOCIATES INTERNATIONAL, INC.
By: /s/X. X. Xxxxxx
---------------------------
X. X. Xxxxxx
Its: Chairman of the Board
-------------------------
Date: July 1, 1997
------------------------
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SECOND AMENDED AND RESTATED XXXXXX X. XXXXX
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
This Second Amended and Restated Xxxxxx X. Xxxxx Executive Employment
Agreement (this "Agreement"), dated as of October 1, 1995 (the "Effective
Date"), is made by and between (1) Capital Associates, Inc. ("CAI"), and Capital
Associates International, Inc. ("CAII") (CAI and CAII being collectively
referred to herein as the "Company"), and (2) Xxxxxx X. Xxxxx ("Xxxxx").
RECITALS
--------
WHEREAS, the Company and Lacey previously entered into that certain
Xxxxxx X. Xxxxx Executive Employment Agreement (the "Initial Employment
Agreement"), which became effective on and as of September 7, 1991;
WHEREAS, the Company and Lacey previously entered into that certain
Amendment No. 1 to the Xxxxxx X. Xxxxx Executive Employment Agreement
("Amendment No. 1"), which became effective on and as of September 7, 1992;
WHEREAS, as part of Amendment No. 1, the parties extended the term of
the Initial Employment Agreement for an additional 24 months, commencing on and
as of September 7, 1992;
WHEREAS, the Company and Lacey previously entered into that certain
Amendment No. 2 to the Xxxxxx X. Xxxxx Executive Employment Agreement
("Amendment No. 2"), which became effective on and as of April 9, 1993;
WHEREAS, the Company and Lacey previously entered into that certain
Amendment No. 3 to the Xxxxxx X. Xxxxx Executive Employment Agreement
("Amendment No. 3"), which became effective on and as of April 9, 1993;
WHEREAS, the Company and Lacey previously entered into that certain
First Amended and Restated Xxxxxx X. Xxxxx Executive Employment Agreement
("First Amended Employment Agreement"), dated as of June 15, 1993;
WHEREAS, the Company and Lacey previously entered into that certain
Amendment No. 1 to First Amended and Restated Xxxxxx X. Xxxxx Executive
Employment Agreement ("Amendment No. 1 to First Amended Employment Agreement"),
dated as of August 26, 1994;
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WHEREAS, the parties now desire to amend and restate the First Amended
Employment Agreement, as previously amended by Amendment No. 1 to First Amended
Employment Agreement;
WHEREAS, all references to the "Second Amended Employment Agreement"
in Exhibit A hereto shall hereinafter be deemed to refer to this Agreement; and
WHEREAS, except as expressly set forth in this Agreement and Exhibit A
hereto, on and as of the Effective Date, this Agreement and Exhibit A hereto
shall supersede and supplant the First Amended Employment Agreement, as
previously amended by Amendment No. 1 to First Amended Employment Agreement, and
Exhibit A thereto, in its entirety, effective on and as of the Effective Date.
NOW, THEREFORE, in consideration of the promises and the covenants set
forth herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
AGREEMENT
---------
i. Employment Agreement. This Agreement sets forth (A) the
terms and conditions on which the Company has previously agreed
to employ, and is currently employing, Lacey and (B) the terms on
which Lacey has agreed to continue to provide services as an
employee t o the Company during the Term of this Agreement. The
nature of the services to be provided by Lacey under this
Agreement are set forth in the section of this Agreement entitled
"Title and Duties."
ii. Effective Date. The "Effective Date" shall be October 1,
1995.
iii. Term. The "Term" of this Agreement shall commence on and as
of the Effective Date and shall expire UPON THE EARLIEST TO OCCUR
OF (A) the close of business on September 30, 1997, unless
renewed by the parties for one or more additional twelve-month
periods (there being no limit on the number of subsequent twelve-
month renewals, or renewals for whole twelve-month multiples, of
this Agreement to which the parties may agree), (B) a date
mutually agreed to by the parties or (C) termination of Lacey's
employment by the Company or Lacey.
iv. Title and Duties. For the period August 31, 1991, through
September 6, 1991 (the "Interim Period"), Lacey served, at the
request of the Board of Directors of CAI (the "Board"), as Acting
President, Acting Chief Executive Officer and Chief Financial
Officer of CAI and CAII.
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Commencing on September 7, 1991, at the request of the Board, Lacey
assumed the positions of President and Chief Executive Officer of CAI and CAII
with the powers, authority, duties and responsibilities specified at any time
and from time to time by a majority of the Board and as set forth in the Bylaws
of the Company.
On and as of the Effective Date, Lacey shall continue to serve as
President and Chief Executive Officer of CAI and CAII with the powers,
authority, duties and responsibilities specified at any time and from time to
time by a majority of the Board and as set forth in the Bylaws of the Company.
v. TERMINATION OF EMPLOYMENT. A majority of the Board may (A)
terminate Lacey's employment at any time, (B) determine not to
renew this Agreement effective on and as of September 30, 1997,
and/or (C) if this Agreement is renewed for a period beyond
September 30, 1997, determine not to renew such extension of this
Agreement on and as of the expiration date of such extension,
subject in the case of (A) (B) and (C) to the terms and
conditions set forth in "Severance" below and the section of
Exhibit A hereto entitled "Severance Benefits."
vi. BASE SALARY DURING EMPLOYMENT. Commencing on the Effective
Date, Lacey's base salary shall be $250,000 per year on an
annualized basis ("Base Salary"), subject to increase at any time
during the Term of this Agreement by the Compensation Committee
of the Board (the "Compensation Committee"), in its sole and
absolute discretion. In determining whether an increase in the
Base Salary is appropriate at any time during the Term of this
Agreement, the Compensation Committee shall consider, among other
things, (A) profitability of the Company, (B) Stock (as defined
below) price and (C) such other factors as the Compensation
Committee deems appropriate, in its sole and absolute discretion.
Base Salary shall be payable in accordance with prevailing
Company payroll policies.
vii. BONUS DURING EMPLOYMENT. The dollar amount and timing of
payment of all annual bonuses (the "Bonus"), if any, payable to
Lacey for any fiscal year of the Company that ends on the last
day of, or at any time during, the Term of this Agreement (a
"Fiscal Year") shall be determined by the Compensation Committee.
The Bonus, if any, payable for any Fiscal Year will be paid no
later than 45 days after the completion and certification of the
audited financial statements of CAI for such Fiscal Year and will
be payable to Lacey notwithstanding his employment status with
the Company at the time the Bonus (i) is authorized by the
Compensation Committee or (ii) is payable to Lacey.
viii. OTHER BENEFITS DURING EMPLOYMENT. Lacey shall be entitled
to participate in all Company employee benefit programs
including, but not limited to, the following: (A) insurance
(life, medical, dental, prescription, etc.); (B) a $500 per month
automobile allowance; (C) vacation and sabbatical in accordance
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with prevailing Company policy; (D) 401K plan and/or other
qualified and nonqualified pension, profit sharing and other
retirement plan participation to the extent available under law;
and (E) any and all other benefits offered to Company employees.
All of the benefits described in the preceding sentence shall be
in accordance with prevailing Company policy at the time the
benefit is extended to Lacey.
The Company previously agreed, and hereby confirms its agreement, that
it will continue to pay, on Lacey's behalf, throughout the Term of this
Agreement, the "excess" life insurance premiums and "excess" long-term
disability insurance premiums set forth in Exhibit B hereto.
ix. EXPENSE REIMBURSEMENT DURING EMPLOYMENT. Lacey will be
reimbursed for reasonable business expenses incurred by him on
behalf of the Company (not including legal fees incurred by Lacey
in connection with the negotiation and execution of this
Agreement), upon submission of properly completed Company expense
report/reimbursement forms.
x. O&D INSURANCE AND INDEMNIFICATION. Lacey will be entitled
to the same officer and director liability insurance and
indemnification as other officers and directors of the Company
for any period during which Lacey served or serves in such
capacities.
xi. SEVERANCE. Upon termination of his employment with the
Company, Lacey shall be entitled to the severance benefits set
forth in Exhibit A hereto.
xii. STOCK OPTION. Pursuant to a stock option agreement in the
form attached as Exhibit C to this Agreement and incorporated by
reference, Lacey is granted, on and as of the Effective Date, an
option (the "Stock Option") to purchase up to 150,000 shares of
common stock of the Company ("Stock"), the terms and conditions
of which are set forth in the stock option agreement attached as
Exhibit C hereto.
On and as of September 6, 1991, the Company granted Lacey (A) 100,000
shares of Stock, subject to certain repurchase rights on the part of the Company
(the "First Stock Award"), all of which were immediately vested, and (B) 500,000
additional shares of Stock, subject to a vesting schedule (the "Second Stock
Award"). The Company's repurchase rights with respect to the First Stock Award
expired on March 31, 1992. On and as of August 28, 1992, the Company granted
Lacey an additional 25,000 shares of Stock (the "Third Stock Award"). On and as
of January 14, 1993, the Company granted Lacey an additional 25,000 shares of
Stock (the "Fourth Stock Award"). On and as of April 8, 1993, the Company
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advised Lacey that he had "earned" 50,000 Second Stock Award shares, which have
been delivered to Lacey. The Company previously filed a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), on Form S-8
covering (1) all of the shares comprising the First, Second, Third and Fourth
Stock Awards plus (2) an additional 150,000 shares of Stock (all of the shares
described in (1) and (2) are referred to herein as the "Registered Stock").
Effective as of the Effective Date, the Company and Lacey hereby agree to
terminate, and Lacey hereby relinquishes, any and all right, title or interest
Lacey may have in and to, or to receive, all or any portion of the remaining
450,000 "unearned" Second Stock Award shares.
xiii. COMPLETE AGREEMENT. This Agreement with exhibits embodies
the complete agreement and understanding between the Company and
Lacey and, as of the Effective Date, supersedes all prior
understandings, agreements or representations by or between them
with respect to the matters addressed herein.
xiv. ASSIGNMENT. Lacey may assign any of his financial or
monetary rights under this Agreement to an immediate family
member (i.e., wife or children). Lacey may not assign any of his
rights under this Agreement to anyone other than a family member
or any of his obligations under this Agreement, without the prior
written consent of the Company. The Company may not assign any of
its rights or obligations under this Agreement without the prior
written consent of Lacey.
xv. REMEDIES. The Company and Lacey will be entitled to enforce
their rights under this Agreement specifically to recover damages
by reason of any breach of any provision of this Agreement and to
exercise all other rights to which they may be entitled. The
Company and Lacey agree that monetary damages may not be an
adequate remedy for breach of the provisions of this Agreement
and that either of them may, in their sole discretion, apply to
any court for specific performance and/or injunctive relief in
order to enforce or prevent violations of this Agreement.
xvi. CHOICE OF LAW. This Agreement shall be governe by and
construed in accordance with the laws of the State of Colorado,
exclusive of the provisions of such laws relating to conflicts of
law.
xvii. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provisions hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
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xviii. SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable
for any reason whatsoever (A) the validity, legality and
enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby, and (B) to the fullest extent possible, the provisions
of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
xix. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to
be an original and all of which together shall constitute one and
the same Agreement. Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to
evidence the existence of this Agreement. Signatures may be
exchanged by telecopy, with original signatures to follow. Each
party to this Agreement agrees that it will be bound by its own
telecopied signature and that it accepts the telecopied
signatures of the other parties to this Agreement. The original
signature pages shall be forwarded to Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll, c/o Xxxx X. Xxxxxxx, Esq., 0000 00xx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, and Xx. Xxxxxxx will provide all
parties with a copy of an originally executed Agreement.
xx. BINDING EFFECT. This Agreement shall be binding upon each
party hereto and such party's heirs, successors and assigns.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the Effective Date.
The Board of Directors of
Capital Associates, Inc.
/s/Xxxxxx Xxxxx By: /s/X. X. Xxxxxx
-------------------------- ---------------------------
Xxxxxx X. Xxxxx X. X. Xxxxxx
Dated: ------------------ Title: Director
------------------------
Dated: 5 Oct. 95
------------------------
The Board of Directors of
Capital Associates
International, Inc.
By: /s/X. X. Xxxxxx
---------------------------
X. X. Xxxxxx
Title: Director
------------------------
Dated: 5 Oct. 95
-------------------------
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EXHIBIT A
TO SECOND AMENDED AND RESTATED
XXXXXX X. XXXXX
EXECUTIVE EMPLOYMENT AGREEMENT
SEVERANCE BENEFITS
------------------
This Exhibit A is a part of that certain Second Amended and Restated
Xxxxxx X. Xxxxx Executive Employment Agreement, dated as of October 1, 1995 (the
"Second Amended Employment Agreement"), by and among Capital Associates, Inc.
("CAI"), Capital Associates International, Inc. ("CAII") (CAI and CAII being
collectively referred to herein as the "Company") and Xxxxxx X. Xxxxx ("Lacey"),
and all provisions of the Second Amended Employment Agreement are applicable
hereto to the extent not otherwise inconsistent with the terms of this Exhibit
A. To the extent of any conflict between the terms of the Second Amended
Employment Agreement and this Exhibit A, the terms of this Exhibit A shall
govern.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Second Amended Employment Agreement.
1. GROUNDS FOR TERMINATION. The grounds for termination of Lacey's
employment with the Company are set forth in the section of the Second Amended
Employment Agreement entitled "Termination of Employment."
2. TERMINATION PAYMENTS.
(A) TERMINATION OF LACEY'S EMPLOYMENT BY THE COMPANY "FOR CAUSE." In
the event the Company terminates Lacey's employment with the Company "for cause"
during the Term of the Second Amended Employment Agreement, Lacey shall receive
no termination payment(s).
"For cause" shall mean (i) dishonesty or fraud; (ii) commission of an
act involving moral turpitude; (iii) commission of a felony; (iv) deliberate
injury or attempted deliberate injury to the Company; (v) dereliction or neglect
of duty, as determined by the Board in its sole and absolute discretion; (vi)
intentional or willful failure to carry out the legally approved instructions of
the Board, as determined by the Board in its sole and absolute discretion; or
(vii) material breach of confidentiality, non-solicitation, and other negative
covenants of the Second Amended Employment Agreement.
(B) TERMINATION OF LACEY'S EMPLOYMENT BY THE COMPANY OTHER THAN "FOR
CAUSE." In the event the Company terminates Lacey's employment with the Company
other than "for cause" during the Term of the Second Amended Employment
Agreement, Lacey shall receive termination payments equal to 100% of his Base
Salary as of the effective date of the termination of his employment with the
1
Company (his "Termination Date"). All payments under this paragraph (B) shall be
paid to Lacey in twelve (12) equal monthly installments, with the first payment
occurring on the Termination Date followed by eleven (11) successive monthly
payments in the same amount on the first eleven (11) monthly anniversary dates
of the Termination Date; provided, however, that any remaining termination
payment installment shall be reduced by any payments Lacey receives by achieving
gainful employment during the installment payment period.
A "Change of Control" of the Company (as defined in the immediately
following paragraph) shall be deemed a termination of Lacey other than "for
cause"; provided, however, that a Change of Control shall not be deemed a
termination of Lacey other than "for cause" if (i) the Company remains in
existence after the Change of Control and the Company retains Lacey in an
executive level position for the remaining Term of the Second Amended Employment
Agreement with substantially comparable accountability and substantially
equivalent compensation to his accountability and compensation immediately prior
to the Change of Control or (b) if the Company does not remain in existence
following the Change of Control, the "Surviving Company" (as defined in the
immediately following paragraph) after the Change of Control retains Lacey in an
executive level position for the remaining Term of the Second Amended Employment
Agreement with substantially comparable accountability and substantially
equivalent compensation to his accountability and compensation immediately prior
to the Change of Control and, if Lacey chooses not to exercise his Stock Option
in full in connection with the Change of Control, issues/grants replacement
stock options to acquire shares of stock of the Surviving Company to Lacey
having comparable value and substantially the same terms as Lacey's Stock Option
(as defined in paragraph 12 of the Second Amended Employment Agreement).
A "Change of Control" shall be deemed to occur upon the happening of
any of the following events: (1) the Board adopts a resolution to the effect
that a change of control has occurred or is anticipated to occur and such change
of control does in fact occur; (2) any change of control of the Company of a
nature that is required to be reported on Form 8-K under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); (3) individuals who, on the
Effective Date, constitute the Board cease for any reason to constitute at least
a majority thereof unless the election, or the nomination for election, of each
new director was approved by a vote of at least two-thirds of the directors on
the Board prior to such election or nomination, including two-thirds of any
directors then still in office who were directors on the Effective Date; (4) the
approval by the stockholders of the Company of any merger or consolidation of
the Company with any other corporation or entity or the sale or other
disposition of all or substantially all the assets of the Company to any other
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person, corporation or entity (such other corporation or entity in the case of a
merger, consolidation or sale of all or substantially all of the assets of the
Company being referred to herein as the "Surviving Company"), and (5) any person
(within the meaning of Section 13(b) of the Exchange Act) becomes the beneficial
owner (directly or indirectly) of securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding securities
entitled to vote generally in the election of directors; provided, however, that
the acquisition by MCC Financial Corporation or its affiliates or subsidiaries
of securities of the Company representing 50% or more of the combined voting
power of the Company's then outstanding securities entitled to vote generally in
the election of directors shall not be considered a "Change of Control" for
purposes of this paragraph 2(B).
(C) VOLUNTARY TERMINATION BY LACEY. In the event Lacey voluntarily
terminates his employment with the Company during the Term of his Second Amended
Employment Agreement, Lacey shall receive no termination payments.
(D) INVOLUNTARY TERMINATION (I.E., DEATH, PERMANENT DISABILITY,
INCOMPETENCE, ETC.) BY LACEY. In the event Lacey involuntarily terminates his
employment with the Company during the Term of his Second Amended Employment
Agreement, such termination shall be treated for all purposes of the Second
Amended Employment Agreement and this Exhibit A as a termination of Lacey's
employment by the Company other than "for cause," as described in paragraph (B)
above.
3. EXPENSE REIMBURSEMENT. In the event Lacey's employment is
terminated (without regard to the reason for such termination), Lacey will be
reimbursed for reasonable expenses, including travel and entertainment expenses,
incurred by him on behalf of the Company while he was an employee of the Company
and for which he submits to the Company properly completed expense
report/reimbursement forms on or before the 15th business day following his
Termination Date.
4. OTHER PAYMENTS. In the event Lacey is terminated by the Company
other than "for cause" (or is treated as if terminated other than "for cause")
during the Term of his Second Amended Employment Agreement, Lacey shall receive
the following termination benefits from the Company, in addition to the
termination payments referenced in paragraph 2. above:
(A) The Company agrees to maintain in full force and effect all
medical, health and other similar insurance on behalf of Lacey and his immediate
family, on the terms and conditions in effect for Lacey on the Termination Date
for the period for which Lacey receives termination payments as set forth in
clause (B) of "Termination Payments" above and COBRA benefits thereafter
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commencing on the first anniversary date of his Termination Date.
(B) The Company will pay to Lacey his share of any bonuses declared by
the Compensation Committee, prorated based upon the aggregate dollar amounts of
the bonus and Lacey's employment for the portion of the year prior to his
Termination Date; provided, however, that Lacey acknowledges that nothing
contained herein shall obligate the Compensation Committee to declare any such
bonus or give Lacey a legal right to enforce the declaration of such bonus.
5. CONSULTING OR PART-TIME ACTIVITIES. Following his termination by
the Company other than "for cause," Lacey will, if requested by the Company, be
available to provide consulting services to the Company, as and when needed (not
to exceed ten (10) hours per week, as determined by the Company in its sole
discretion), for a period of twelve (12) full months following the date of
termination of his employment with the Company (the "Initial Consulting
Period"), unless he shall become gainfully employed during such Initial
Consulting Period at which time any remaining consulting service obligation
described herein shall immediately terminate. The Company agrees to reimburse
Lacey for all pre-approved, actual out-of-pocket expenses incurred by Lacey in
connection with this arrangement during the Initial Consulting Period. If
Lacey's consulting services are requested after the expiration of the Initial
Consulting Period, Lacey agrees to negotiate in good faith with the Company to
agree on terms pursuant to which such services will be provided.
Following his termination from the Company "for cause" or following
his voluntary termination, Lacey will have no obligation to provide consulting
services to the Company.
6. AGREEMENT NOT TO SOLICIT EMPLOYEES OR OTHERS. Lacey agrees that,
through and including the third annual anniversary of the date of termination of
his employment with the Company, he will not, directly or indirectly, (A)
solicit, induce, interfere with or hire away, or assist any third party in
soliciting, diverting, interfering with or hiring away any part-time or
full-time employee of the Company, whether or not such employment is pursuant to
a written agreement, is for a specified term or is "at will," (B) induce or
attempt to induce any customer, to cease doing business with the Company, or in
any way interfere with the relationship between any such party and the Company,
and (C) retain as an employee any former part-time or full-time employee of the
Company within six months following such employee's termination of employment
with the Company.
7. OWNERSHIP, NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.
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(A) Except as set forth below, Lacey agrees that all Confidential
Information (as defined below) and all physical embodiments thereof are
confidential to the Company. Lacey agrees that he will not at any time, directly
or indirectly, use, disclose or make available to any person, concern or entity
any Confidential Information, except with the prior written consent of the
Company or as may be required by law.
(B) "Confidential Information" shall be broadly defined to include any
and all data and information relating to the business of the Company, including
without limitation: (i) information and material relating to lessee and investor
relations; (ii) lease and financing documentation; (iii) financial and
accounting affairs of the Company; (iv) business agreements with vendors and
lenders; (v) pricing information; (vi) customer lists; (vii) business plans and
strategies; (viii) any and all information relating to present or proposed
Company debt or equity products; (ix) marketing plans and data; (x) trade
secrets; and (xi) any other information that Lacey knows or should know is
treated as confidential by the Company. "Confidential Information" shall not
include any data or information that has been voluntarily disclosed to the
public by the Company or that otherwise enters the public domain by lawful
means.
IN WITNESS WHEREOF, this Exhibit A has been executed by the parties
hereto as of the Effective Date of the Second Amended Employment Agreement.
The Board of Directors of
Capital Associates, Inc.
/s/Xxxxxx Xxxxx By: /s/X. X. Xxxxxx
-------------------------- ---------------------------
Xxxxxx X. Xxxxx X. X. Xxxxxx
Dated: ------------------ Title: Director
------------------------
Dated: 5 Oct. 95
------------------------
The Board of Directors of
Capital Associates
International, Inc.
By: /s/X. X. Xxxxxx
---------------------------
X. X. Xxxxxx
Title: Director
------------------------
Dated: 5 Oct. 95
-------------------------
5
