EXECUTIVE DEFERRED COMPENSATION AGREEMENT
This EXECUTIVE DEFERRED COMPENSATION AGREEMENT (this "Agreement") is made
this 18th day of January, 1999, by and between PLM International, Inc., a
Delaware corporation, its affiliates and subsidiaries (collectively, the
"Company"), and Susan C. Santo ("Executive").
RECITALS:
A. Executive is a management employee of the Company, serving the Company
in such capacity as the Company's board of directors or officers may designate
from time to time.
B. The Company and Executive have, prior to the date of this Agreement,
agreed, and shall in the future, apart from this Agreement, agree, from time to
time, on the amount(s) that the Company is to pay Executive as Executive's basic
current cash compensation (that is, Executive's salary, hereinafter referred to
as Executive's "Salary"), as well as on other amounts of compensation for
personal services (including, but not by way of limitation, bonuses, consultancy
fees, and commissions).
C. In consideration of the personal services required to be performed by
Executive in order for Executive or Executive's Beneficiary to receive any of
the benefits provided under this Agreement, and in recognition of the importance
that certain of the Company's management employees, now and in the future, may
place upon its actions to secure adequate retirement and death benefits for its
management employees -- but specifically disavowing any intention of setting any
policy or precedent, binding or otherwise, with respect to the retirement or
death benefits, if any, that the Company may at any time, now or in the future,
decide to provide to any of its employees, management or otherwise, other than
Executive -- the Company desires to make provision for pension and death
benefits for Executive, as specified in the provisions of this Agreement.
WHEREFORE THE PARTIES AGREE AS FOLLOWS:
1. Deferred Compensation Benefits
1.1 Commencing on the first Business Day of any Compensation
Period, and continuing on the first Business Day of each of the following months
until the end of such Compensation Period, the Company shall pay Executive a
Monthly Executive Deferred Compensation Benefit under this Agreement. The
Monthly Executive Deferred Compensation Benefit shall be computed according to
the following formula:
Monthly Executive Deferred Compensation Benefit = VF (AF (S/M))
where "S" equals the sum of all of the amounts paid to Executive as Salary
during Executive's last 60 months of employment with the Company (or, if
Executive was an employee of the Company for less than 60 months, during all of
Executive's months of employment with the Company), "M" is the number of months
in the period of consecutive months used in the computation of S, "AF" is
Executive's Accrual Factor, and "VF" is Executive's Vesting Factor.
1.2 For the purposes of paragraph 1.1, a month of employment shall
be any calendar month during which Executive has been a full-time employee of
the Company at all times. In computing the number of months during which
Executive was employed by the Company preceding a Compensation Period, periods
of normal paid vacation or of paid leave, of whatever type, shall be treated as
periods during which Executive was a full-time employee of the Company. Any
unpaid leave of absence taken by Executive with the Company's consent shall be
treated (a) as beginning on the first day of the calendar month in which it
actually began and ending on the last day of the calendar month in which it
actually ended, and (b) as a period during which Executive was not a full-time
employee of the Company.
1.3 Except as otherwise provided in this Agreement, Executive's
"Accrual Factor" shall be determined under the following table:
Years of Service Accrual Factor
-------------------------------------------------------
1 5%
2 10%
3 15%
4 20%
5 25%
6 30%
7 35%
8 40%
9 45%
10 50%
11 55%
12 60%
13 65%
14 70%
15 or more 75%
For the purpose of determining Executive's Accrual Factor under the above table,
a "Year of Service" shall be any calendar year during which Executive is or was
actually employed by the Company as a full-time employee for at least 40 weeks.
For the purpose of the preceding sentence, any calendar week shall be treated as
a week of full-time employment if Executive was a full-time employee of the
Company on any day during such week.
1.4 Except as provided in paragraph l.5, or Section 6 or 12,
Executive's "Vesting Factor" shall be determined under the following table:
Years of Service
Occurring After
Calendar Year 1985 Vesting Factor
1 0%
2 0%
3 0%
4 0%
5 or more 100%
For the purpose of determining Executive's Vesting Factor under the above table,
a Year of Service shall be computed in the same manner as a Year of Service for
the purpose of computing Executive's Accrual Factor under paragraph l.3, except
that calendar years preceding the calendar year in which this Agreement was
entered into by and between the Company and Executive (or, if earlier, the
calendar year of any prior Agreement which this Agreement supersedes) shall not
be counted.
1.5 Notwithstanding anything that might otherwise be to the
contrary in paragraph 1.4, if Executive terminates employment with the Company
on account of a Layoff, or on account of his or her death or a period of illness
ending in death, Executive's Vesting Factor shall be determined under the
following table:
Years of Service
Occurring After
Calendar Year 1985 Vesting Factor
1 20%
2 40%
3 60%
4 80%
5 or more 100%
For the purposes of this paragraph l.5, a "Layoff" shall mean a
termination of employment initiated by the Company as part of a general
reduction in the size of the Company's work force or management in response to a
reduction in the volume, or a structural change in the nature of, the Company's
business, or its manner of conducting business, where the circumstances of the
termination indicate that the Executive's job performance has not generally been
unsatisfactory and that, but for the reduction in the volume, or change in the
structural nature of the Company's business, or its manner of conducting
business, the Company would probably not have terminated Executive's employment.
l.6 The "Compensation Period" shall be the period of consecutive
calendar months commencing with the first Business Day of the second calendar
month following the later of (a) the calendar month in which Executive attains
age 60, or (b) the calendar month in which Executive terminates employment with
the Company, and ending with the last day of the earlier of (x) the calendar
month following the calendar month in which Executive again becomes an employee
of the Company, or (y) the last day of the 59th month following the first month
of the Compensation Period.
l.7 For the purposes of this Agreement, a "Business Day" shall be
any day other than Saturday, Sunday, or a Holiday. A "Holiday" shall be any day
on which the Company's Executive offices are not open for general business, and
on which the Company's nonmanagement employees are not required to report for
work other than by special arrangement.
l.8 For the purpose of this Agreement, the terms "employee" and
"employment" shall have their common law meanings, and shall not include,
respectively, an independent contractor or the work relationship between the
Company and an independent contractor.
l.9 (a) For the purpose of computing Executive's Accrual Factor,
any period of time during which Executive was employed by any of the following
employers shall be treated as a period of time during which Executive was
employed by the Company, so that if Executive has been employed by any such
employer he shall be in the same position with respect to the computation of his
Accrual Factor as he would be had his service (Years of Service and any portion
of any Year of Service) for such employer been service with the Company:
PLM Companies, Inc.
Transcisco Industries, Inc.
PLM International, Inc.
l.9 (b) For the purposes of computing Executive's Vesting Factor,
any period of time during which Executive was employed by any of the following
employers shall be treated as a period of time during which Executive was
employed by the Company, so that if Executive has been employed by any such
employer he shall be in the same position with respect to the computation of his
Vesting Factor as he would be had his service (Years of Service and any portion
of any Year of Service) for such employer been service with the Company:
PLM Companies, Inc.
Transcisco Industries, Inc.
PLM International, Inc.
2. Reduction for Prior Payments
If Monthly Executive Deferred Compensation Benefit payments become
payable under Section l of this Agreement, and with respect to any previous
Compensation Period(s) Executive has previously received Monthly Executive
Deferred Compensation Benefit payments, then, notwithstanding anything in
Section l of this Agreement that might otherwise be to the contrary, the rules
provided in Section l of this Agreement, which generally provide that a
Compensation Period ends no later than the last day of the 59th calendar month
after the first calendar month of the Compensation Period, shall be applied by
substituting "the Nth calendar month" for "the 59th calendar month" each place
"the 59th calendar month" appears, where "N" is the number obtained by
subtracting from 59 the total number of Monthly Executive Deferred Compensation
Benefit payments previously received by Executive with respect to any previous
Compensation Period(s).
3. Death Benefits
3.1 If Executive dies during a Compensation Period the Company
shall continue to make Monthly Executive Deferred Compensation Benefit payments,
until the end of the Compensation Period, exactly as if Executive had not died,
except that, commencing with the first Monthly Executive Compensation Benefit
payment payable after the l0th Business Day following the Company's actual
receipt of notice of Executive's death, all remaining Monthly Executive Deferred
Compensation Benefit payments shall be paid to Executive's Beneficiary.
3.2 If Executive dies other than during a Compensation Period,
then Executive shall be assumed for all purposes of this Agreement to have (a)
terminated employment with the Company (i) if the Executive is not employed by
the Company at the time of his death, on the day Executive actually last
terminated employment with the Company or (ii) if the Executive is employed by
the Company at the time of his death, on the first day of the calendar year
following the calendar year in which Executive actually died (in which case
Executive shall be assumed to have provided his or her services to the Company
until such date on a full-time basis), (b) survived until the attainment of age
60, and (c) died on the second day of the second calendar month following his or
her attainment of age 60. The provisions of paragraph 3.l shall then be applied
using the assumed facts set forth in the previous sentence.
3.3 Executive's Beneficiary shall be:
(a) such person as Executive may have instructed in an unrevoked
writing delivered to the Company's General Counsel, and accepted by the
Company's General Counsel for the purpose of designating a Beneficiary under
this Agreement; otherwise,
(b) such person as Executive may have designated in Executive's
last will and testament duly admitted to probate; otherwise,
(c) Executive's estate.
3.4 Notwithstanding anything contained in this Agreement that
might otherwise be to the contrary, no amount constituting property of a
surviving or former spouse of Executive due to the application of any community
or other marital property law shall be paid to any person other than such
surviving or former spouse, or such surviving or former spouse's estate, without
the written consent of such surviving or former spouse, or of the executor or
administrator of such surviving or former spouse's estate. Prior to making any
payment under this Agreement the Company may require the potential recipient of
such payment to supply the Company with such proof as the Company shall
reasonably require to ensure that the payment in question complies with the
provisions of this paragraph 3.4.
4. Source of Payments
The Deferred Compensation Benefits payable under this Agreement
are non-transferable and subject to substantial risks of forfeiture within the
meaning of section 83 of the Internal Revenue Code of 1986. The Company may, but
is not required to, establish a trust or other fund separate and beyond the
reach of the creditors of the Company to secure the Deferred Compensation
Benefits payable under this Agreement. In the event that such a trust or other
fund is established by the Company, the Company may, but is not required to
contribute any specified amounts or assets to such trust or other fund. It is
the intent that the Deferred Compensation Benefits be paid from any amounts
available in such trust or other fund, however, in any event the Company remains
obligated as provided under this Agreement to the extent that Deferred
Compensation Benefits are not paid by such trust or other fund.
5. Acceleration of Payments
Notwithstanding anything contained in Sections l or 3 of this
Agreement that might otherwise be to the contrary, the Company's Board of
Directors shall have the power in its discretion to pay the total amount of any
Monthly Executive Compensation Benefit payments that may become payable under
this Agreement either in a single sum or in a lesser number of installments than
if payments were made monthly as would otherwise be provided in Sections l or 3.
If the Company's Board of Directors decides to pay Executive's Monthly Executive
Compensation Benefit as a single sum, or in such lesser number of installments,
then the dollar amount(s)) owed by the Company to Executive or Executive's
Beneficiary under this Agreement shall be less than the sum of the nominal
dollar amounts that would otherwise be owed under Sections l or 3 in order to
take into account the time value of money. The dollar amounts that shall be owed
by the Company under this Agreement in the case of a single sum payment or
payment in a lesser number of installments than would otherwise be made in
Sections l or 3 shall be the amount determined by:
(a) discounting to present value, using generally accepted
accounting principles, the stream of payments that would otherwise be payable
under Sections l or 3 assuming that Executive's Compensation Period lasted for
as long as necessary to exhaust the Company's payment obligation under Sections
l or 3 (taking into account any reduction of such obligation provided for by
Section 2 of this Agreement), and assuming an interest rate reasonably
approximate to the interest rate that the Company would pay a commercial lender
in connection with a loan to the Company, made at the time the payment is made,
of an amount approximately equal to the amount(s)) to be paid to Executive under
Sections l or 3 of this Agreement, and for a term reasonably approximate to the
period over which such payments would be made; and,
(b) increasing, if appropriate, to future value, using the same
principles used in subparagraph (a) above, the payment(s) actually to be made,
taking into account the time(s) when such payment(s)) is/are actually to be
made.
6. Form of Payments
6.1 Except as provided in Section 6.2 below, all payments to
Executive under this Agreement shall be made in cash.
6.2 If the Company makes one or more payment(s) to Executive under
Section 5, such payment(s) may, at Executive's option be wholly or partially in
the form of one or more immediate or deferred annuity contracts on the sole life
of the Executive or jointly on the lives of Executive and Executive's
Beneficiary, with any term certain or refund feature elected by Executive.
7. Forfeitures of Otherwise Vested Amounts
Notwithstanding anything contained in this Agreement that might
otherwise be to the contrary, Executive's Vesting Factor for the purposes of
paragraphs l.4 and l.5 of this Agreement shall, if it is not already zero
percent, be reduced to zero percent and shall, forever thereafter, remain, zero
percent if:
(a) Executive resigns from the Company's employment against the
wishes of the Company;
(b) Executive materially breaches any trade secrets or other
confidentiality agreement between the Company and Executive;
(c) Executive's employment terminates within the 48-consecutive
month period consisting of the 24 months immediately preceding and the 24 months
immediately following the Company's discovery of any misconduct in connection
with Executive's employment, including fraud or embezzlement;
(d) After counseling with respect to the importance of such an
examination to the financial interests of the Company, and after a reasonable
period for deliberation, Executive refuses to undergo any medical or other
examination in connection with the acquisition or potential acquisition of any
life insurance policy, annuity, or other investment whose price may reflect a
mortality risk factor, that the Company may desire to acquire.
8. Service During Retirement or Disability
8.1 Executive may continue to be involved in the Company's affairs
during a Compensation Period provided, however, that Executive's involvement in
such affairs shall in no way be required as a condition of receiving any payment
under this Agreement, and provided that during any Compensation Period the
Company shall have no right under this Agreement to require Executive to perform
any services for, or otherwise be involved in the affairs of, the Company.
8.2 If Executive provides services to the Company during a
Compensation Period, the compensation, if any, that Executive shall receive from
the Company for such services shall be the subject of an agreement or
understanding between Executive and the Company other than this Agreement. In
particular, this Agreement shall not preclude or otherwise affect Executive's
receipt of compensation from the Company for services performed during a
Compensation Period, nor shall any payments due under this Agreement be reduced
or offset by any such compensation.
9. Taxes
9.1 If and to the extent that the Company determines in good faith
that any amount otherwise payable to Executive or Executive's Beneficiary under
this Agreement is subject to Federal Insurance Contributions Act ("FICA") taxes,
California State Disability Insurance ("SDI") taxes, or any other payroll taxes
(including, but not by way of limitation, federal or state income tax
withholding on wages, deferred compensation, disability benefits, death
benefits, or similar amounts, or any federal or state withholding tax on
employee wages, deferred compensation, disability benefits, death benefits, or
similar amounts that may be enacted after the date of this Agreement
(collectively "Employee Payroll Taxes"), then the Company (or the trust, as the
case may be) shall deduct from such amount the sum, if any, of:
(a) Executive's portion as an employee or former employee of the
Company, or Executive's Beneficiary portion or a beneficiary of a former
employee of the Company -- but not the Company's portion -- of FICA taxes under
Sections 3102 of the Internal Revenue Code of l986, as amended (the "Code"), or
under any related or successor provision(s) of federal law;
(b) SDI taxes under Sections 2901, 984, and 986 of the California
Unemployment Insurance Code, or under any related or successor provisions of
state law; and
(c) the amount of any other applicable Employee Payroll Taxes due
with respect to such gross amounts, to the extent that, as a matter of federal
or state tax law, they are imposed on Executive or Executive's Beneficiary.
9.2 The amount of any reduction(s) under Section 9.l above shall
for the purposes of this Agreement and for federal and state tax purposes --
including federal and state payroll tax deposit and reporting purposes -- be
treated by the Company, Executive, or/and Executive's Beneficiary, as employee
FICA, SDI, or/and other Employee Payroll Taxes withheld from Executive's wages
or benefits as an employee or former employee of the Company, or from other
appropriate amounts.
9.3 Except as otherwise provided in this Section 9 of this
Agreement, the gross amounts otherwise payable to Executive or Executive's
Beneficiary under this Agreement shall not be reduced on account of any other
taxes that may be imposed on the Company on account of or in connection with the
Company's payments to Executive or Executive's Beneficiary under this Agreement.
10. Automatic Acceleration of Vesting and Optional Acceleration of
Payment in the Case of A Change in Control; Section 280G Cutback
10.1 Notwithstanding anything contained in this Agreement that
might otherwise appear to the contrary other than Section 10.4 automatically, as
a consequence of the operation of this Agreement, and without any requirement
for any approval on the part of the Company's board of directors or any officer
or group of officers of the Company, in the event of any Change in Control of
the Company, if Executive is an employee of the Company at the time of such
Change in Control of the Company, then effective with the occurrence of such
Change in Control of the Company:
(a) Executive shall be treated for all purposes of this Agreement
as if Executive 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
(b) Executive's Vesting Factor under Section l.4 of this Agreement
shall, except as it may be affected by Section 7 of this Agreement prior to the
date of the Change in Control of the Company, become and forever thereafter
remain 1.
10.2 Moreover, notwithstanding anything contained in this
Agreement that might otherwise appear to the contrary, in the case of any Change
in Control of the Company, the Company's board of directors may at any time
direct that, in addition to the provision of Section 10.1 above, this Agreement
shall be applied (a) if Executive had already terminated employment with the
Company prior to the Change in Control of the Company, as if Executive 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 occurred, or (b) if
Executive was an employee of the Company on the date on which the Change in
Control of the Company occurred, as if Executive had terminated employment with
the Company, and had done so on the day following the day on which Executive
shall be deemed to have attained age 60 under Section 10.1.
10.3 Except than as provided in Section 11 below, for purposes of
this Agreement, "Change in Control of the Company" shall mean a change in the
ownership of the Company's stock that would be required to be reported in
response to Item 6(e) of Schedule l4A of Regulation l4A promulgated under the
Securities Exchange Act of l934 as in effect on the date of this Agreement or,
if such Item 6(e) is no longer in effect, a change in ownership that would be
required to be reported under any regulation issued by the Securities and
Exchange Commission pursuant to the Securities Exchange Act of l934 that serves
similar purposes as such Item 6(e); provided however, that in any event a Change
in Control of the Company shall be deemed to have occurred if and when (a) any
"person" (as such term is used in Sections l3 (d) and l4 ((d)(2)) of the
Securities Exchange Act of l934) is or becomes a beneficial owner, directly or
indirectly, of securities of the Company representing more than 15% of the
combined voting power of the Company's then outstanding securities, or (b) there
is a change in the Board of Directors which change is the result of a proxy
solicitation(s) or other action(s) to influence voting at a shareholders'
meeting of the Company (other than by voting one's own stock) by a Person or
group of Persons who has Beneficial Ownership of 5% or more of the combined
voting power of the securities of the Employer and which causes the Continuing
Directors to cease to be a majority of the Board of Directors of the Employer.
For purposes of the preceding sentence, "Continuing Directors" shall mean a
member of the Board of Directors who (i) is a member of the Board of Directors
on the date hereof, or (ii) who subsequently becomes a member of the Board of
Directors and who either (x) is appointed or recommended for election with the
affirmative vote of a majority of the Directors then in office who are Directors
on the date hereof, or (y) is appointed or recommended for election with the
affirmative vote of a majority of the Directors then in office who are described
in subsections (i) and (ii)(x) above, as applicable.
10.4 (a) Notwithstanding anything that might otherwise be to the
contrary in this Agreement, if as a result of the application of Sections 10.1
or/and 10.2 of this Agreement Executive's Vesting Factor or/and the timing of
any payments to Executive under this Agreement is/are accelerated upon the
occurrence of a Change in Control of the Company, then the Executive shall
engage outside counsel ("280G Counsel") to render an opinion as to whether the
payment of any amount or portion of any amount that would be paid by the Company
to Executive under this Agreement but for this Section 10.4 would, more probably
than not, be deductible for federal income tax purposes notwithstanding Section
280G of the Code, or any successor provision. If 280G Counsel is unable to
render its opinion that the entire amount consisting of the aggregate of all
payments due Executive under this Agreement (disregarding this Section 10.4
would, more probably than not, be deductible, then 280G Counsel shall determine
the maximum present value of payments (using the present value rules applicable
under Section 280G) that, in its opinion, Executive may receive under this
Agreement without any portion of any payment of such present value being, more
probably than not, nondeductible for federal income tax purposes as the result
of the application of Section 280G of the Code (Executive's "280G Limit"). 280G
Counsel shall then determine the number of months by which the period that would
otherwise be Executive's Compensation Period under this Agreement would be
required to be shortened (without increasing the amount determined under Section
l.l as Executive's Monthly Deferred Compensation Benefit) so that the present
value of the amounts that Executive will receive under this Agreement would not
exceed Executive's 280G Limit. The number of months that would otherwise be
included in Executive's Compensation Period shall then be shortened,
notwithstanding any other provision of this Agreement that would otherwise
appear to be to the contrary, to the number of months so determined by 280G
Counsel.
(b) The selection of 280G Counsel shall be within the Executive's
discretion, but the competence of 280G Counsel in such tax matters must be
demonstrable.
(c) If 280G Counsel determines that, in connection with an event
that constitutes a Change in Control under this Agreement, other amounts may be
payable to Executive by the Company or any affiliate of the Company (including,
but not by way of limitation, a member of an affiliated group as determined
under Section 280G(d)(5) of the Code) under any other agreements or arrangements
that would, in 280G Counsel's opinion, more likely than not be required under
Section 280G of the Code to be aggregated with payments under this Agreement in
determining whether amounts that would otherwise be paid under this Agreement
would exceed the 280G Limit, or in determining whether such other amounts
themselves might be nondeductible to the payor under Section 280G, then 280G
Counsel shall assume, in making its determinations under Section 10.4(a), that
the maximum amount payable under such other agreements or arrangement shall in
fact be paid to Executive, notwithstanding that such other agreements or
arrangements may contain their own ordering rule with respect to cutbacks
similar in principle to the cutback provided for in this Section 10.4 except to
the extent that any such agreement or arrangement, or the ordering rule provided
for in it, has been entered into as of a date following the date as of which
this Agreement is entered into and specifically refers to this Agreement.
11. Automatic Acceleration of Both Vesting and Payment in the Case of
Liquidation or Dissolution
The Company's liquidation or/and dissolution shall also constitute
a Change in Control of the Company for the purposes of Section 10 of this
Agreement, except that, in the case of the Company's liquidation or dissolution,
Section 10.2 shall be applied without the requirement for action by the
Company's board of directors, so that (a) if Executive actually terminated
employment with the Company prior to the Change in Control of the Company,
Executive shall automatically be treated as having 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 occurred or (b) if Executive was an employee of
the Company on the date on which the Change in Control of the Company occurred,
then Executive shall automatically be treated as having terminated employment
with the Company on the day after Executive is treated as having attained age 60
under Section 10.1.
12. Limited Effect
12.1 Other than as specifically provided in this Agreement, this
Agreement shall have no effect on the nature, duration, or terms of Executive's
employment relationship with the Company, or on the amount of, or the Company's
liability to pay, any Salary or other compensation to Executive.
12.2 No amount(s) that may become payable to Executive under this
Agreement shall be deemed to be salary or other compensation of Executive for
the purpose of computing benefits to which Executive may be or become entitled,
or contributions that Executive may be or become entitled to make, under any
compensation, profit sharing, or salary deferral plan -- whether qualified under
the Code or not -- of the Company, nor is anything in this Agreement intended to
affect any right or obligation that Executive may have, now or in the future,
under any such plans or arrangements.
13. Procedure for Review of Denial of Benefits
13.1 The Company's board of directors shall be the administrator
(the "Administrator") of this Agreement. The Administrator shall determine the
rights under this Agreement of Executive, of any Beneficiary of Executive, of
any surviving or former spouse of executive, or of any legatees or heirs of
Executives (the potential "Claimants"). If a Claimant disputes the
Administrator's determination of benefits under this Agreement, he, she, or it
may file a written claim for benefits with the Administrator, provided that, in
the case of any Claimant to whom the Administrator has directed a written
notification of the administrator's determination, the claim is filed within 60
days of the date the Claimant receives such notification.
13.2 If a claim for benefits under this Agreement is wholly or
partially denied, the Administrator shall provide the Claimant with a notice of
denial, written in a manner calculated to be understood by the Claimant and
setting forth:
(a) the specific reason(s) for the denial;
(b) specific references to the provisions of this Agreement on
which the denial is based;
(c) a description of any additional material or information needed
by the Claimant in order to perfect the claim, with an explanation of why the
material or information is necessary; and
(d) appropriate information as to steps to be taken if the
Claimant wishes to appeal the Administrator's denial of the claim. The notice of
denial shall be given within a reasonable time but not later than 90 days after
the claim is filed, unless special circumstances require an extension of time
for processing the claim. If an extension of time is required, written notice
shall be furnished to the Claimant within 90 days of the date the claim was
filed stating the special circumstances requiring the extension, and the date by
which a decision on the claim can be expected, which date shall be no more than
l80 days from the date the claim was filed. If no notice of denial is provided,
the Claimant may appeal the claim as though the claim had been denied.
13.3 The Claimant and/or his or her representative may appeal the
denied claim to the Administrator, and, in connection with the appeal, may:
(a) request a review on written application to the Administrator;
(b) review pertinent documents; and
(c) submit issues and comments in writing to the Administrator.
The appeal must be made within 60 days of the date the Claimant received
notification of the denied claim.
13.4 On receipt of a request for review, the Administrator shall,
within a reasonable time, but not later than 60 days after receiving the
request, provide written notification of its decision to the Claimant stating
the specific reasons and referencing the specific provisions of this Agreement
on which its decision is based, unless special circumstances require an
extension of time for processing the review. If an extension is required, the
Administrator shall notify the claimant of the special circumstances and of a
date no later than l20 days after the date the review was requested on which the
Administrator will notify the Claimant of its decision.
13.5 Nothing in this Section 13 of this Agreement shall be
interpreted as limiting in any way the Company's right to interplead any
Claimants in any court of competent jurisdiction.
14. Agreement Binding; Successors and Assigns
14.1 This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto, their permitted assigns, if any, and, but only by
operation of law, their respective next of kin, legatees, administrators,
executors, legal representatives, and successors (including remote, as well as
immediate, successors to such parties, but only by operations of law). In
applying any provision of this Agreement with respect to any successor or assign
of the Company, such provision shall be applied by treating such successor or
assign as the "Company" referred to in this Agreement, unless such treatment
would be clearly inappropriate. The principle of the preceding sentence shall
not, except as otherwise specifically provided in other provisions of this
Agreement, apply to any successor or assign of Executive or Executive's
Beneficiary.
14.2 Except by operation of law, as provided in Section l4.1
above, this Agreement may not be assigned by Executive. This Agreement may be
assigned by the Company, but only with Executive's prior written consent.
14.3 Neither Executive, Executive's estate, or Executive's
surviving spouse, if any, shall have any right to commute, encumber, or dispose
of the right to receive payments under this Agreement, and such payments and the
right to receive them, shall, to the maximum extent permissible under the law,
be nonassignable, nontransferable, and not subject to garnishment or other
attachment.
14.4 The Company shall have the right under this Agreement to
offset against its obligation to make any payment to any person under this
Agreement (including Executive, Executive's Beneficiary, or any other person)
any claims that the Company may have against such person in connection with any
transaction or occurrence between the Company and such person, or affecting the
Company and in which such person was involved, whether or not such transaction
or occurrence is otherwise connected with this Agreement in any other way.
14.5 Any defense, whether arising under this Agreement or in
connection with any other transaction or occurrence, that the Company may have
against any obligation, including the obligation to make any payment, that the
Company might otherwise have under this Agreement, shall, to the extent good
against Executive, also be good against Executive's Beneficiary or any other
Claimant.
15. Arbitration
15.1 Any controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration to take place in
San Francisco, California, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitrator(s) shall award attorneys' fees to the prevailing party, if any, in
the arbitration, and any court entering judgment upon such award shall award
attorneys' fees and costs to the party causing such judgment to be entered.
16. Notices
All notices, consents, requests, demands, or other communications
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given when delivered, or when mailed by United States certified mail,
postage prepaid, as follows:
If to the Company: PLM International, Inc.
One Market Plaza
Steuart Street Tower, Suite 800
San Francisco, California 94l05
If to Executive:
or to such other address as the Company or Executive shall have last designated
by notice to the other. Any item shall be effective upon delivery, and any item
mailed by United States certified mail, postage prepaid, shall be deemed to have
been delivered on the third business day following the date deposited in the
mail.
17. Waiver
No failure on the part of either the Company or Executive to
exercise, no delay in exercising, or course of dealing with respect to, any
right, power, or privilege under this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power, or privilege preclude
any other or further exercise of such right, power, or privilege, or of any
other right, power, or privilege. The remedies provided in this Agreement are
cumulative and not exclusive of any remedies provided by law.
18. Invalid Provision
Invalidity or unenforceability of any particular provision of this
Agreement shall not affect the provisions of this Agreement, and this Agreement
shall be construed in all aspects as if the invalid or unenforceable provision
were omitted.
19. Enumeration and Headings
The enumeration and headings of this Agreement are merely for
convenience of reference; they shall not be construed to constitute
representations or warranties, or to have any substantive significance.
20. Entire Agreement
This writing constitutes the entire understanding between the
parties with respect to the matters it deals with, and such understanding may be
modified, altered, or amended only by the written agreement of the parties
hereto. The Company and the Executive expressly agree that this agreement
supersedes and replaces any prior agreement that may already be in effect with
respect to the matters covered herein, and, except as provided in paragraph 1.4
of this agreement, any such prior agreement will become null and void upon the
execution and delivery of this agreement.
21. Governing Law
This agreement shall be construed in accordance with and governed
by California law.
22. Counterparts
This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument and any of
the parties hereto may execute this Agreement by signing any such counterpart.
PLM INTERNATIONAL, INC.
By: /s/ Robert N. Tidball
President and Chief Executive Officer
Date:
EXECUTIVE
/s/ Susan C. Santo
Date: 1/29/99