SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement"), dated as of December 2,
1996, is entered into by and between PLM Financial Services, Inc. ("PLM", the
"Employer" or the "Company") and Stephen M. Bess ("Employee"), who hereby state
as follows:
WHEREAS, Employee presently holds the position of President at PLM
Investment Management, Inc., a wholly-owned subsidiary of PLM;
WHEREAS, PLM deems it to be in the best interest of the Company to
provide incentives to keep Employee fully dedicated to Employee's position at
PLM; and
WHEREAS, PLM and Employee believe the best way of assuring Employee's
continued dedication to the Company is to provide Employee certain benefits in
the event his/her employment is terminated by the Company, which benefits are
greater than he/she would otherwise be entitled to, pursuant to the terms and
conditions described herein.
NOW, THEREFORE, IN CONSIDERATION OF THE PROVISIONS HEREINABOVE AND
HEREINAFTER SET FORTH, PLM AND EMPLOYEE DO HEREBY AGREE AS FOLLOWS:
1. The Company will pay to Employee Severance Pay (as defined below) if
the following conditions are met:
(A) Employee is terminated from employment with the Company for any
reason other than the reasons set forth in Section 3 below, and
(B) Employee enters into a Release (the "Release") substantially in
the form attached hereto as Exhibit A, with all blank lines
appropriately completed.
2. Severance Pay and Other Post Employment Benefits.
2.1 "Severance Pay" shall be defined as twenty-four (24) months of
Employee's base salary at his/her current rate per month at the time of his/her
termination, less customary payroll deductions. Severance Pay will be paid to
Employee or Employee's heirs, successors, or permitted assigns on a semi-monthly
basis, pursuant to the Company's normal payroll schedule, with the first payment
being made following the "Effective Date" as defined in the Release. The term
"Severance Pay" shall also include Employee's continued enrollment at the
Company's expense for twenty-four (24) months in the Company's group medical,
dental and vision insurance plans, disability insurance plan and life insurance
plan (together, the "Benefit Plans"), all at the same level as provided during
the period immediately preceding Employee's termination of employment, provided,
however, "Severance Pay" shall not include enrollment in any Company Benefit
Plan to the extent the insurer or underwriter of such Benefit Plan will not
cover Employee under or include same level benefit coverage for Employee after
termination of Employee's employment at a comparable premium. Employee's right
to continued group benefits after any period covered by the Company will be
determined in accordance with federal and state law. Employee will continue to
be obligated to pay the same employee's portion of any premium and any
deductible and/or co-payments associated with such benefits, as other similarly
situated employees of the Company.
2.2 In addition to the Severance Pay specified in Section 2.1, Employee
will be entitled to outplacement counseling at Employer's expense in accordance
with Employer's customary practice, if any, with respect to an employee having
Employee's base salary level.
3. Employee shall not be entitled to the Severance Pay if Employee is
separated from the Company for any of the following reasons:
(A) Resignation. Employee voluntarily quits his position for any
reason.
(B) Cause. The Company terminates Employee's employment for Cause. For
purposes of this Agreement "Cause" shall mean:
(i) the failure by Employee to perform his duties in a manner
consistent with Employee's historic performance levels after
demand for such performance is delivered by Employer which demand
identifies the manner in which Employee has not continued to
perform his duties in accordance with Employee's historic
performance levels;
(ii) the willful and intentional act by the Employee that is, in
the reasonable determination of the Employer, materially
injurious to the Company, monetarily or otherwise;
(iii)the failure, for any reason, of Employee to maintain all
professional licenses and memberships required by his position;
or
(iv) the conviction of the Employee of a crime involving an act
of moral turpitude or which is a felony.
(C) Death. Employee's employment is terminated due to his death.
(D) Family or Medical Leave. Employee shall have been absent from his
duties for any reason which is covered by the California Family Care
and Medical Leave Act ("FCML") or the Family and Medical Leave Act of
1993 ("FMLA") for longer than the period for which the Company is
required to provide to Employee unpaid leave pursuant to the FCML or
the FMLA. Nothing contained in this Agreement shall be deemed to waive
Employee's rights under the FCML or the FMLA.
4. The Employee shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise.
Employee acknowledges that the Severance Pay provided in this Agreement is in
excess of the amount that the Employee would have customarily received as a
terminated employee under Company policy and that these additional benefits are
expressly given as consideration for the execution of this Agreement and the
agreement to execute the Release attached hereto as Exhibit A.
5. Confidentiality.
5.1 Employee agrees that he/she shall keep and hold the contents, terms
and provisions of this Agreement in the strictest confidence and that he/she
shall not discuss, disclose, disseminate, produce, publish, comment upon,
reference or reveal the existence of this Agreement or any of the contents,
terms and provisions of this Agreement to any person or any entity without first
securing the prior written consent of the Company, except (1) to Employee's
personal representatives or as required in a judicial proceeding to enforce the
terms of this Agreement, or (2) as otherwise required by law (in which latter
instance, the Employee, upon becoming aware of any such legal duty, shall
promptly give notice thereof to the Company and shall, to the greatest extent
possible, cooperate with the request of the Company to keep this Agreement
confidential). This paragraph does not apply to the reporting, completing and
filing of state and federal income tax returns or any and all subsequent
proceedings relating thereto. The Employee agrees that any breach of this
paragraph will cause irreparable harm and loss to the Company and that the
Company shall be entitled to have and secure against the Employee injunctive
relief against any future or further violations of this paragraph.
5.2 Employee, in consideration of the Severance Pay and other benefits
to be received by him/her under this Agreement, shall not, directly or
indirectly, solicit any of PLM's customers or employees exisiting as of the date
of Employee's termination of employment. If Employee violates this Paragraph,
and continues to do so after the Company has notified Employee of such
violation, Company shall have the right to seek and secure equitable restraint
of Employee from such activities in contravention of the provisions of this
Agreement, including obtaining a temporary restraining order and/or injunction
against Employee.
5.3 It is specifically understood and agreed that some of the
Employer's (and Employer's affiliates) business activities are secret in nature
and constitute trade secrets, including but not limited to Employer's (and
Employer's affiliates) "know-how", methods of production and manufacturing,
ideas and results of research and development, specifications of equipment and
materials, profit margins, planning information, projections, customer and
supplier information, reports, analyses, agreements, as well as financial data
and reports. All Employer's (and Employer's affiliates) trade secrets and
proprietary information are and shall be the property of Employer for its own
exclusive use and benefit, and Employee agrees that he will hold the same in
strictest confidence and will not at any time, either during or after his
employment by the Employer, use or permit the use of the same for his own
benefit or for the benefit of others unless authorized to do so by the
Employer's written consent, such information is in the public domain or
authorized by a contract or agreement to which the Employer is a party or by
which it is bound. Violation of this or any of the other covenants of this
Agreement will entitle the Employer to, among other remedies, terminate all
future Severance Pay.
6. This Agreement (including the attached Exhibit A) contains the
entire and exclusive understanding among the parties regarding the subject
matter hereof and supersedes and replaces all prior negotiations, proposed
agreements and agreements, written and oral, and may not be modified or amended
in any respect whatsoever, except by a writing signed by all parties hereto.
This Agreement is not intended to conflict with, or reduce or increase any right
Employee may have pursuant to the PLM International, Inc. 1988 Management Stock
Compensation Plan, the PLM International, Inc. Mandatory Management Stock Bonus
Plan, or the PLM International, Inc. Executive Deferred Compensation Plan.
7. This Agreement shall be governed and construed in accordance with
the laws of the State of California. Venue of any action to enforce the terms of
this Agreement shall lie in San Francisco County, California. Except for the
injunctive relief as set forth in Paragraph 5, any dispute, claim or controversy
arising out of or related to this Agreement shall be resolved by arbitration
under the Employment Dispute Resolution Arbitration Rules and auspices of the
American Arbitration Association, San Francisco, California Regional Office (the
"Association"). Any such arbitration shall be conducted by an arbitrator
selected by mutual agreement of the parties, and such arbitration decision shall
be final. The party prevailing in the arbitration shall be awarded its share of
the fees and expenses of the arbitration (including, but not limited to,
arbitrator's fees), in addition to attorneys' fees. Employee specifically
consents to such arbitration and hereby represents such consent is willfully and
voluntarily given without influence by coercion or threatening statements from
Employer.
8. Each signatory hereto represents that he, she or it is fully
authorized to execute this Agreement.
9. The parties agree that if any provision of this Agreement is held to
be invalid, void or unenforceable, the remaining provisions shall continue in
full force and effect.
10. With respect to the Company, this Agreement shall inure to the
benefit of and be binding upon any successors or assigns of PLM. With respect to
Employee, this Agreement shall not be assignable but shall inure to the benefit
of and be binding upon the heirs, executors, administrators, and successors of
Employee.
11. Nothing contained in this Agreement shall be deemed to change the
"at-will" nature of the employment relationship between the Company and
Employee. The Company and the Employee hereby acknowledge and agree that
Employee's employment may be terminated at will, with or without cause, for any
reason, subject to the obligations created by this Agreement. Nothing contained
in this Agreement shall be deemed to provide Employee any right to (i) regular,
irregular or special salary increases of any kind, (ii) participation in any
Company bonus plan or other benefit plan not otherwise available to all
employees of the Company or (iii) payment of any bonus compensation of any kind.
This Agreement shall not in any way bind or create any obligations for PLM
International, Inc. or any of its subsidiaries other than Employer.
IN WITNESS WHEREOF, this Agreement has been executed on the
day and year specified above.
PLM FINANCIAL SERVICES, INC. EMPLOYEE
By: /s/ Stephen Peary /s/ Stephen M. Bess
Its: Senior Vice President
EXHIBIT A
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release (the "Separation
Agreement"), dated as of ____________________, 19__ is entered into by and
between PLM Financial Services, Inc., and _________________ ("Employee"), an
individual, who hereby state as follows:
WHEREAS, Employee has been employed by PLM Financial Services, Inc. and
its wholly-owned affiliates and parent, PLM International, Inc. (together,
"PLM") since ___________, and has most recently held the position of President,
PLM Investment Management, Inc.
WHEREAS, Employee's employment with PLM has been terminated effective
___________________________;
WHEREAS, PLM and Employee each desire to resolve any and all matters
arising out of Employee's employment with or termination from PLM.
NOW, THEREFORE, PLM AND EMPLOYEE DO HEREBY AGREE AS FOLLOWS:
1. In consideration of the provisions hereinabove and hereinafter set
forth, PLM and Employee and each of their affiliates, successors,
administrators, assigns, agents, attorneys, and any other persons acting on
their behalf (collectively "Releasors"), do hereby irrevocably and
unconditionally release, relieve, waive, relinquish and discharge one another,
and all heirs, predecessors, successors, representatives, assignees,
subsidiaries, affiliates, parents, spouses, partners, officers, directors,
stockholders, agents, employees, insurers, attorneys, and all persons acting by,
through, under or in concert with any of them (collectively, "Releasees"), of
and from any and all manner of liabilities, claims, demands, actions, causes of
action, damages, obligations, all theories of fault or wrongdoing (whether
statutory, common law, tort or otherwise), debts, expenses, costs, and
attorneys' fees, of every kind, known or unknown (hereinafter referred to as a
"Claim" or the "Claims"), arising out of, or in any way related to, Employee's
employment with or termination from PLM.
These Claims include, but are not limited to, Claims arising under
federal, state and local statutory or common law, such as the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act, as amended, including the
amendments of the Civil Rights Act of 1991, and the Americans With Disabilities
Act, and the law of contract and tort.
2. PLM and Employee acknowledge and agree that they are aware of the
facts and intend that the execution of this Separation Agreement shall be
effective as full and final accord and satisfaction and settlement of and as a
bar to each and every Claim or Claims arising out of the above which PLM,
Employee or the Releasors has, may have in the future or has had against the
other party or the Releasees, whether such Claims are known or unknown, foreseen
or unforeseen.
3. PLM AND EMPLOYEE EACH CERTIFY THAT THEY HAVE READ SECTION 1542 OF
THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH STATES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
4. PLM AND EMPLOYEE HEREBY EXPRESSLY WAIVE APPLICATION OF SECTION 1542
OF THE CIVIL CODE OF THE STATE OF CALIFORNIA AND ANY AND ALL RIGHTS THEREUNDER,
AS WELL AS ANY OTHER FEDERAL OR STATE STATUTORY RIGHTS OR RULES OR PRINCIPLES OF
COMMON LAW OR EQUITY OR THOSE OF ANY JURISDICTION SIMILAR TO SECTION 1542
(HEREINAFTER REFERRED TO AS A "SIMILAR PROVISION"). THUS PLM, EMPLOYEE, OR THE
RELEASORS MAY NOT INVOKE THE BENEFITS OF SECTION 1542 OR ANY OTHER SIMILAR
PROVISION IN ORDER TO PROSECUTE OR ASSERT IN ANY MANNER ANY CLAIM OR CLAIMS
RELEASED HEREUNDER.
5. In addition to the amounts which have been paid to Employee for
earned salary and accrued vacation pay through , and although the employee is
not otherwise entitled to it, Employee will be paid __________________Thousand
Dollars ($_______), less customary payroll deductions, as separation pay, as
well as certain other post employment benefits specified in a Severance
Agreement dated as of ________. Such separation pay will be paid in semi-monthly
installments for a total of forty-eight (48) installments, starting on the first
regularly scheduled pay day following the Effective Date of this Separation
Agreement, as defined in Paragraph 15 below. Employee acknowledges that the
separation pay and other post employment benefits are conferred on Employee as
consideration for the execution of the Severance Agreement and this Separation
Agreement.
6. In executing this Separation Agreement, the parties hereby
acknowledge and agree that Employee is retaining all rights and interests which
have vested through [termination date] in PLM's stock option plan(s), its 401(k)
Plan (Employees Profit Sharing and Tax Advantaged Savings Plan) and any other
plan in which Employee holds a vested interest except as expressly identified as
being released under this Agreement, and it is expressly agreed that Employee is
not releasing or waiving his vested interest in said plans. In consideration of
the receipt of Severance Pay, Employee waives all rights and benefits to which
he may be entitled under the Employment Agreement entered between him and PLM
International, Inc.
7. Employee agrees to immediately return to PLM any information
regarding PLM's practices, procedures, trade secrets, customer lists, product
marketing and any other PLM documents in any form (the "Proprietary
Information") and Employee remains obligated to maintain the confidentiality of
such Proprietary Information at all times.
8. Nothing in this Separation Agreement shall be construed as an
admission by either party of any unlawful or actionable conduct by either party
and the parties hereto make no admission of liability of any kind whatsoever.
9. The provisions of this Separation Agreement shall be deemed to
obligate, extend to and inure to the benefit of, with respect to PLM, its
agents, servants, employees, officers, directors, parents, subsidiaries and
affiliates, successors and assigns, and, with respect to Employee, his
representatives, executors, heirs, administrators, successors and assigns.
10. Employee agrees that he/she shall keep and hold the contents, terms
and provisions of this Agreement in the strictest confidence and that he/she
shall not discuss, disclose, disseminate, produce, publish, comment upon,
reference or reveal the existence of this Agreement or any of the contents,
terms and provisions of this Agreement to any person or any entity without first
securing the prior written consent of the Company, except (1) to Employee's
personal representatives or as required in a judicial proceeding to enforce the
terms of this Agreement, or (2) as otherwise required by law (in which latter
instance, the Employee, upon becoming aware of any such legal duty, shall
promptly give notice thereof to the Company and shall, to the greatest extent
possible, cooperate with the request of the Company to keep this Agreement
confidential). This paragraph does not apply to the reporting, completing and
filing of state and federal income tax returns or any and all subsequent
proceedings relating thereto. The Employee agrees that any breach of this
paragraph will cause irreparable harm and loss to the Company and that the
Company shall be entitled to have and secure against the Employee injunctive
relief against any future or further violations of this paragraph.
11. This Separation Agreement contains the entire understanding among
the parties and supersedes and replaces all prior negotiations, proposed
agreements and agreements (other than the Severance Agreement), written and
oral, and may not be modified or amended in any respect whatsoever, except by a
writing signed by all parties hereto.
12. This Separation Agreement shall be governed and construed in
accordance with the laws of the State of California. Venue of any action to
enforce the terms of this Separation Agreement shall lie in San Francisco
County, California. Except as set forth in Paragraph 12, any dispute, claim or
controversy arising out of or related to Separation Agreement shall be resolved
by arbitration under the Employment Dispute Resolution Arbitration Rules and
auspices of the American Arbitration Association, San Francisco, California
Regional Office (the "Association"). Any such arbitration shall be conducted by
an arbitrator selected by mutual agreement of the parties, and such arbitration
decision shall be final. The party prevailing in the arbitration shall be
awarded its share of the fees and expenses of the arbitration (including, but
not limited to, arbitrator's fees), in addition to attorneys' fees. Employee
specifically consents to such arbitration and hereby represents such consent is
willfully and voluntarily given without influence by coercion or threatening
statements from PLM.
13. Each signatory hereto represents that he, she or it is fully
authorized to execute this Separation Agreement.
14. The Parties agree that if any provision of this Separation
Agreement is held by a court of competent jurisdiction or arbitrator to be
invalid, void or unenforceable, the remaining provisions shall continue in full
force and effect.
15. The following is required by the Older Workers Benefit Protection
Act of 1990: Employee has up to 21 days from the date of this Separation
Agreement to accept the terms of this Separation Agreement, although Employee
may accept it at any time within those 21 days.
Employee is advised to consult an attorney about this Separation
Agreement.
Once Employee accepts this Separation Agreement, by signing and dating
this Separation Agreement, Employee will have an additional seven days in which
to revoke his acceptance. To revoke, Employee must send to PLM's General Counsel
a written statement of revocation by facsimile and registered mail, return
receipt requested. If Employee does not revoke, the eighth day after the date of
his acceptance will be the "Effective Date" of the Separation Agreement.
16. PLM and Employee do hereby acknowledge and agree that they have
each been represented by independent counsel of their own choice throughout all
negotiations which preceded the execution of this Separation Agreement and that
they fully understand and voluntarily accept this Separation Agreement and have
executed this Separation Agreement after seeking the advice of said independent
counsel. Each party shall bear, and be solely responsible for, their own
respective costs and expenses related to the preparation and subject matter of
this Separation Agreement.
IN WITNESS WHEREOF, the parties have executed this document as of the
date set forth below, at San Francisco, California.
EMPLOYEE PLM FINANCIAL SERVICES, INC.
By:
Dated: Title: