Exhibt 10.4
FIRST AMENDMENT
TO
TRANSITION SERVICES AND EMPLOYMENT AGREEMENT
This First Amendment ("Amendment") is made as of this 2nd day of August,
2001, to a Transition Services and Employment Agreement ("Agreement"), dated as
of January 5, 2001, by and between PLM International, Inc. ("Company") and
Xxxxxxx X. Xxxx ("Employee").
Prior to the date of this Amendment, Company and Employee entered into the
Agreement to provide for certain services by Employee to Company following the
purchase of a controlling interest in Company by MILPI Acquisition Corp. Terms
used in this Amendment, which are defined in the Agreement shall have the same
meaning as they do in the Agreement.
Company desires to retain the services of Employee beyond the expiration of the
Effective Period, on an "at-will" basis for a period undefined, and Employee is
willing to remain employed by Company on that basis. Company and Employee are
desirous of amending the Agreement to reflect certain terms of the continued
service of Employee to Company.
NOW, THEREFORE, Company and Employee agree to amend the Agreement as follows:
1. Section 1, Services is amended to read in its entirety as follows:
Upon the expiration of the Effective Period, Employee will continue to be
employed by Company in an executive and administrative capacity, namely,
President and Chief Executive Officer of PLM Financial Services, Inc., at the
San Francisco, California office of Company, and shall provide such services as
Company's Board of Directors may from time to time reasonably assign to him for
the Company or any subsidiary or affiliate.
2. Section 2, Effective Period is amended to read in its entirety as
follows: This Agreement shall become effective on August 7, 2001, ("the
Effective Period").
3. Section 3, Compensation; (a) Base Salary is amended to read in its
entirety as follows:
After the expiration of the Effective Period, Company shall pay Employee
$20,833 per month, of which $15,833 represents base salary and $5,000 is
consideration to Employee in exchange for Employee's agreement to sign the
General and Special Release in the form attached to this Amendment as Exhibit A.
Payment of compensation to Employee shall be made in a manner that is consistent
with Company payroll practices and Company may deduct and withhold from all
payments to be made to Employee the amounts required or permitted to be deducted
or withheld pursuant to any provisions of any present or future applicable law
or regulation, together with the right and authority to pay any such deductions
or withholdings over to any party entitled to the same pursuant to the
provisions of any such law, regulation or court order.
4. Section 3, Compensation; (c) Benefits is amended to read in its entirety
as follows:
For a period of 24 months from the Effective Period or until the Employee
is no longer employed with Company ("Employee's Termination"), which ever is
less, but not less than 6 months, Employee shall be entitled to continue to
participate in the then available Company sponsored dental, health, life
insurance, disability and long-term care benefit plans and arrangements of
Company (specifically excluding incentive compensation plans and arrangements,
and qualified benefit plans) in effect on the date of termination subject to the
eligibility requirements set forth by each of the respective coverage providers.
Upon Employee's Termination under the terms of this Amendment, Employee shall be
eligible for certain benefits under COBRA for a period of 18 months. Company
shall pay the COBRA payments on Employee's behalf for the 18 month period ("the
COBRA Period"). In addition, during the COBRA Period, Company shall pay the
annual premium for Long Term Health Care benefits as provided through a
Transamerica Long Term Care Policy for the Employee (policy # #89735984) and his
Spouse, if Employee is married at the time, (#89895733). In lieu of the
continued coverage provided herein, upon Employee's Termination, other than for
cause, Employee may elect to receive, and Company agrees to pay Employee (if
Employee so elects), an amount equal to the then-present value of the Company's
cost of providing such benefits for the remaining period, discounted to the
then-present value at a rate of eight per cent (8%) per annum.
5. Reimbusement of Expenses:
Company will continue to reimburse Employee for reasonable and necessary
business expenses incurred on behalf of Company.
6. At-Will Employment:
This Amendment establishes an "at-will" employee/employer relationship.
Nothing in this Amendment shall be deemed to affect the nature of the "at-will"
employment of Employee by the Company after the Effective Period, and nothing in
this Amendment shall be construed to create a contract of employment for any
fixed term, and it is expressly understood that the employment of Employee by
the Company may be terminated by Employee or the Company, with or without
notice, at any time for any reason, or no reason.
7. Section 6. Protective Covenants (a) Confidentiality is amended to read in
its entirety as follows:
The Employee agrees to keep in strict secrecy and confidence any and all
information the Employee assimilates or to which the Employee has access during
the Employee's employment by the Company and its affiliates, ("Company") and
which has not been publicly disclosed and is not a matter of common knowledge in
the fields of work of the Company ("Material"). The Employee agrees that both
during and after the term of the Employee's employment by the Company, the
Employee will not, without the prior written consent of the company, disclose
any such confidential information to any third person, partnership, joint
venture, company, corporation or other organization. The foregoing shall not be
breached to the extent that such confidential information becomes a matter of
general knowledge other than through a breach by the Employee of the Employee's
obligations herein. If Employee is required (by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or similar process)
to disclose any of the Material, Employee will notify the Company promptly so
that the Company may seek any appropriate protective order and/or take any other
action. In the event that such protective order is not obtained, or that the
Company waives compliance with the provisions hereof, (a) Employee may disclose
to any tribunal or other person only that portion of the Material which Employee
has been advised by legal counsel is legally required to be disclosed and shall
use reasonable best efforts to obtain assurance that confidential treatment will
be accorded such Material and (b) Employee shall not be liable for such
disclosure unless such disclosure to such tribunal or other person was caused
by, or resulted from, a previous disclosure by Employee not permitted by this
Amendment.
8. Section 5. Release is Amended to read as follows:
Notwithstanding any other provision of this Amendment or any other
agreement between the Company and the Employee, Employee (or his beneficiaries
or heirs) agrees to execute and deliver to Company, and does not revoke, a
release of claims in the form attached hereto as Exhibit A; provided that, if
any obligation under this Amendment remains outstanding as of the execution and
delivery of such release, such obligations shall be excluded from the release
and further release (relating only to such obligations) shall be executed and
delivered (and not revoked) by Employee upon company's satisfaction of such
remaining obligations.
9. Legal Review:
Employee represents and warrants that he has been given ample opportunity
to review this Amendment and attached Release with his Attorney of choice and
has in fact had such review.
10. Section 3 Compensation (d) Deferred Compensation, Stock Options is
amended to read in its entirety as follows:
Notwithstanding anything herein to the contrary, the Indemnity Agreement,
dated as of February 2, 1988, between Company and Employee, the Indemnification
Agreement dated as of March 28, 1989, between Company and Employee shall
continue in full force and effect.
11. The following Section(s) shall be deleted: Section 3 Compensation (b)
Termination Payment, (e) Retention Bonus and Severance Bonus; (g) Section 280G.
Other than as provided in this Amendment, all the terms and conditions of
the Agreement shall remain the same.
IN WITNESS WHEREOF, Company and Employee have caused this Amendment to be duly
executed and delivered as of the date first written above.
PLM INTERNATIONAL, INC.
By _/ s / Xxxxx Coyne_______
----------------------
Name in Print _James Coyne__
------------
EMPLOYEE:
__/ s / Xxxxxxx X. Bess_____
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Xxxxxxx X. Xxxx
ACKNOWLEDGED AND AGREED:
MILPI ACQUISITION CORP.
By /s/ Xxxxx X. Xxxxx
Name in Print: Xxxxx X. Xxxxx
Title: Vice President
