EXHIBIT 27
TRANSITION SERVICES, EMPLOYMENT AND CONSULTING AGREEMENT
This TRANSITION SERVICES, EMPLOYMENT AND CONSULTING AGREEMENT (this
"AGREEMENT"), dated as of January 5, 2001, is entered into by and between PLM
International, Inc. a Delaware corporation ("COMPANY"), and Susan C. Santo an
employee of Company ("EMPLOYEE").
WHEREAS, prior to the execution and delivery of this Agreement, Company and
MILPI Acquisition Corp., a Delaware corporation ("BUYER"), have entered into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant to which Buyer
has, among other things, agreed to commence a cash tender offer to purchase
shares of Company Common Stock as described in the Merger Agreement, which is to
be followed by the merger (the "MERGER") of Buyer with and into Company on the
terms and conditions set forth in the Merger Agreement; and
WHEREAS, during the period commencing on the date on which Company shall
have caused Buyer's designees to be appointed to Company's Board of Directors
pursuant to Section 1.3 of the Merger Agreement (the "TRIGGER DATE") and
continuing until at least six months thereafter, Company will undergo various
transitional changes and upheavals associated with the Merger which Employee is
uniquely qualified to handle; and
WHEREAS, Company desires to retain the services of Employee during and
after such transition period, and Employee desires to assist Company with such
transition, in each case upon the terms and subject to the conditions more fully
stated herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. SERVICES.
(a) Company hereby engages the exclusive services of Employee, during
the period commencing on the Trigger Date and continuing until the Closing Date
(as defined in the Merger Agreement) (the "Employment Period"), to serve in a
senior management capacity and to provide such of the following services as
Company's Board of Directors may from time to time reasonably assign to her: (a)
any services performed by Employee on behalf of Company during the prior 24
months, (b) subject to such duties being consistent with Employee's service in a
senior management capacity, any services related to the transition or the
integration of Company with Buyer and its affiliates (including recruiting and
training a replacement), and (c) any such other services as are reasonably
expected of similarly situated employees of companies of a similar size that are
in the process of managing a transition as a result of a merger or other
extraordinary corporate event. Employee hereby agrees to perform such services
on the terms and conditions herein contained and to abide by all rules and
regulations for the conduct of Employee that are now or may hereafter be
reasonably established by Company.
(b) Company hereby engages the non-exclusive services of Employee,
during the period commencing on the Closing Date (as defined in the Merger
Agreement) and continuing for six months thereafter (the "CONSULTING PERIOD"),
to provide legal services and services related to the transition or the
integration of Company with Buyer and its affiliates for up to ten hours per
month. Any services provided beyond such ten hours shall be by agreement of both
of the parties and, if agreed, shall be billed and paid at the discounted rate
of $200 per hour.
(c) Subject to compliance with Sections 2(c) and 2(f), either party
may terminate this Agreement prior to the expiration of the Consulting Period
upon ten days' prior written notice to the other.
2. COMPENSATION.
(a) BASE SALARY. During the Employment Period, Company shall pay to
Employee as full compensation for all services performed hereunder, the sum of
$23,007 per month, payable in semi-monthly installments. Company may deduct and
withhold from all payments to be made to Employee hereunder 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 or regulation.
(b) CONSULTING FEES. During the Consulting Period, Company shall pay
to Employee as full compensation for up to ten hours per month of services
performed hereunder a monthly retainer of $7,667, payable in semi-monthly
installments. During the Consulting Period, Employee shall at all times be an
independent contractor to Company and shall not be regarded as an employee of
Company or any of its affiliates. Employee shall be responsible for the payment
of all federal, state and local taxes, FICA payments or the like out of the
compensation paid to Employee as a consultant under the terms of this Agreement.
In the event Employee provides less than ten hours of legal services during any
month during the Consulting Period, no credit or carry-forward shall be provided
for the difference. Company shall reimburse Employee for any reasonable and
documented out-of-pocket expenses incurred by Employee in connection with any
services provided during the Consulting Period.
(c) TERMINATION PAYMENT. In the event Employee ceases to be engaged by
Company prior to the last day of the Consulting Period solely by reason of (A)
her death or Disability (as defined below), (B) her termination by Company
without Cause (as defined below), or (C) her voluntary termination for Good
Reason (as defined below), then at such time Company shall pay to Employee the
product of $7,667 times the number of months (including portions thereof)
between the date of such termination and the end of the Consulting Period, in
addition to any benefits and amounts otherwise due under Sections 2(d) and 2(f).
(d) BENEFITS. During the Employment Period (or such shorter period
that Employee is employed by Company hereunder) and for one year thereafter,
Company shall maintain in full force and effect, and Employee shall be entitled
to continue to participate in (at the same level as Employee (and her family
members) participated on September 30, 2000), the dental, health, life
insurance, disability and long-term care benefit plans and arrangements of
Company (other than incentive compensation plans and arrangements) in effect on
the date hereof in which Employee participates, all of which plans and
arrangements are described more fully on Schedule 2(d) hereto, or such other
benefit plans and arrangements that would provide Employee with substantially
equivalent benefits thereunder.
(e) DEFERRED COMPENSATION; STOCK OPTIONS. Notwithstanding anything
herein to the contrary, the Indemnity Agreement, dated as of November 19, 1997,
between Company and Employee, the Indemnification Agreement, dated as of
November 25, 1997, between Company and Employee, the Executive Deferred
Compensation Agreement, dated as of January 18, 1999, between Company and
Employee and the Non-Qualified Stock Option Agreement, dated as of May 12, 1998
and amended as of April 29, 1999, between Company and Employee (collectively,
the "Continuing Agreements") shall continue in full force and effect, it being
acknowledged and agreed by the parties that the benefits thereunder (to the
extent applicable) have been accelerated prior to the date hereof and that any
amounts due under the Executive Deferred Compensation Agreement shall be paid by
Company promptly following the later of (i) receipt by Company from Employee of
a written request for such payment, and (ii) the Trigger Date (it being further
acknowledged and agreed by the parties that no amount payable pursuant to this
Agreement shall be taken into account for purposes of calculating any payments
dues under such Executive Deferred Compensation Agreement).
(f) RETENTION BONUS AND SEVERANCE BONUS. In consideration for
Employee's assistance with the transition, Company shall pay to Employee:
(i) A cash bonus equal to $88,800 (the "EMPLOYMENT RETENTION
BONUS") if (i) Employee is still employed by Company pursuant to this Agreement
on the last day of the Employment Period, or (ii) Employee ceases to be employed
by Company prior to the last day of the Employment Period solely by reason of
(A) her death or Disability (as defined below), (B) her termination by Company
without Cause (as defined below), and/or (C) her voluntary termination for Good
Reason (as defined below). Such bonus shall be paid by Company promptly after
Employee becomes eligible therefor; and
(ii) A cash bonus equal to $54,000 (the "SEVERANCE BONUS") if (i)
Employee is still engaged by Company as a consultant pursuant to this Agreement
on the last day of the Consulting Period, or (ii) Employee ceases to be engaged
by Company prior to the last day of the Consulting Period solely by reason of
(A) her death or Disability (as defined below), (B) the termination of this
Agreement by Company without Cause (as defined below), and/or (C) the
termination of this Agreement by Employee for Good Reason (as defined below).
Such bonus shall be paid by Company promptly after Employee becomes eligible
therefor.
(g) DEFINITIONS. For purposes of this Section 3, the following terms
shall have the following meanings:
(i) "DISABILITY" shall mean Employee's incapacity, due to
physical or mental illness, to perform her duties under this Agreement on a
full-time basis for more than three consecutive months.
(ii) "CAUSE" shall mean (A) Employee's willful and continued
failure to perform her duties under this Agreement (other than because of a
Disability), which failure has not been cured within ten days after written
demand for substantial performance is delivered by Company to Employee, which
demand specifically identifies the manner in which Employee has not
substantially performed her duties, (B) Employee's willful and intentional act
or omission that is, in the reasonable determination of Company, materially
injurious to Company, whether monetarily or otherwise, (C) Employee's breach of
any material covenant of this Agreement, which breach, unless it is a breach of
any of the provisions of Section 5, has not been cured within ten days after
written notice thereof is delivered by Company to Employee, or (D) Employee's
conviction of a crime involving an act of moral turpitude or which is a felony
resulting in or intended to result in, directly or indirectly, gain or personal
enrichment of Employee or her affiliates at the expense of Company. For purposes
of this definition, no act or failure to act on Employee's part shall be
considered willful unless done, or omitted to be done, by her not in good faith
and without the reasonable belief that her act or omission was in the best
interests of Company.
(iii) "GOOD REASON" shall mean (A) Company's breach of any
material covenant of this Agreement that has not been cured within ten days
after written notice of such non-compliance is given by Employee to Company, (B)
any demonstrable and material diminution, during the Employment Period, of the
compensation, benefits, duties, responsibilities, authority or powers of
Employee, provided that Employee provides a reasonable description of any such
diminution(s) and a statement that Employee finds, in good faith, that the acts
or omissions to act causing such diminution in duties, responsibilities,
authority or powers to be a material diminution and that, as such, she elects to
terminate her employment hereunder for Good Reason, and provided further that
Company has not cured such diminution within ten days after such statement is
given by Employee to Company, (C) any requirement by Company that Employee
relocate her primary business office during the Employment Period, or (D) any
requirement by Company that Employee relocate her primary business office during
the Consulting Period to a geographical area greater than 35 miles from
Company's current principal executive offices; provided, however, that
reasonable business travel (which shall mean no more than an aggregate of two
business trips during the Employment Period and the Consulting Period) shall not
be deemed to constitute Good Reason.
(h) SECTION 280G. Notwithstanding any other provision of this
Agreement or any other agreement between Company and Employee, in the event that
any payment or benefit received or to be received by Employee from Company
(collectively with all other such payments and benefits, the "Total Payments")
would not be deductible, in whole or in part, by Company as a result of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), then, to the
extent necessary to make such payments deductible, the benefits provided
hereunder shall be reduced (if necessary, to zero); provided, however, that
Employee may elect which benefits to have reduced (including any benefits under
any other agreement in effect between Company and Employee). For purposes of
this limitation, in the event Company asserts that the limitation would apply,
(i) no portion of the Total Payments the receipt or enjoyment of which Employee
shall have waived at such time and in such manner as not to constitute a
"payment" within the meaning of Section 280G of the Code shall be taken into
account, (ii) no portion of the Total Payments shall be taken into account that,
in the opinion of tax counsel selected by Company and reasonably accepted by
Employee ("Tax Counsel"), does not constitute a "parachute payment" within the
meaning of Section 280G of the Code, including by reason of Section
280G(b)(4)(A) of the Code, and (iii) the benefits payable under this Agreement
shall be reduced only to the extent necessary so that the Total Payments (other
than those referred to in the preceding clauses (i) or (ii)) in their entirety
are not, in the opinion of Tax Counsel, subject to disallowance as deductions by
reason of Section 280G of the Code. If it is established pursuant to a final
determination of a court or an Internal Revenue Service proceeding that,
notwithstanding the good faith of Employee and Company in applying the terms of
this Section 3(h), the Total Payments paid to or for Employee's benefit are in
an amount that would result in any portion of such Total Payments being subject
to excise tax under Section 280G of the Code, then, if, in the opinion of Tax
Counsel, such repayment would result in (A) no portion of the remaining Total
Payments being subject to such excise tax, and (B) a dollar-for-dollar reduction
in Employee's taxable income and employment taxes, Employee shall be obligated
to pay Company, upon demand, an amount equal to the sum of (1) the excess of the
Total Payments paid to or for Employee's benefit over the Total Payments that
could have been paid to or for Employee's benefit without any portion of such
Total Payments being subject to such excise tax, and (2) interest on such amount
at the rate provided in Section 1274(b)(2)(B) of the Code from the date of
Employee's receipt of such excess until the date of such payment. If, in the
opinion of Tax Counsel, such repayment would not result in (x) no portion of the
remaining Total Payments being subject to such excise tax, and (y) a
dollar-for-dollar reduction in Employee's taxable income and employment taxes,
Employee shall be obligated to pay Company, upon demand, an amount equal to the
excise tax imposed under Section 4999 of the Code (if the Internal Revenue
Service asserts such amount should have been withheld by the Company) and any
penalties or fines imposed on Company by the Internal Revenue Service in
connection with the failure by Company to make any withholdings or file any
reports with respect to such disallowed Total Payments.
3. TERMINATION OF PRIOR AGREEMENTS. Except for the Continuing Agreements,
each of which shall continue in full force and effect notwithstanding any other
provisions of this Agreement, all employment, consulting, services,
compensation, bonus, severance, golden parachute, change in control,
indemnification and other agreements between Employee and Company or any of its
affiliates, and all amendments and supplements thereto, including the Employment
Agreement, dated as of November 19, 1997, between Employee and Company and the
Severance Agreement, dated as of December 17, 1999, between Employee and
Company, each as amended, shall, as of the Trigger Date, be forever terminated
and discharged, with no liability or payment right thereunder accruing to any
party thereto (notwithstanding anything stated therein to the contrary), and
such agreements shall no longer be of any force or effect.
4. RELEASE.
(a) Notwithstanding any other provision of this Agreement or any other
agreement between Company and Employee, Company shall have no obligation to pay
the Employment Retention Bonus or the Severance Bonus unless Employee (or her
beneficiaries or heirs in the case of the payment being made on account of her
death) executes and delivers to Company, and does not revoke, a release of
claims in the form attached hereto as Exhibit 1; provided that, if any
obligations under this Agreement remain outstanding as of the execution and
delivery of such release, such obligations shall be excluded from the release
and a 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.
(b) By signing this Agreement, Employee acknowledges and agrees that
(i) she has been afforded a reasonable and sufficient period of time of at least
45 days to review this Agreement (including the form of Release attached hereto
as EXHIBIT 1), for deliberation thereon and for negotiation of the terms
thereof, and that she has been specifically encouraged to consult with legal
counsel of her choice before signing this Agreement (having been informed in
writing that federal age-based claims can only be released if such person is
first notified in writing that he or she has the right to consult with counsel
prior to signing such a release, and having been informed in writing that
benefits substantially similar to those accruing to Employee hereunder have only
been offered to Stephen M. Bess and Richard K. Brock and not to any other
executive officers of Company) and that she had a fair opportunity to do so and
in fact consulted Michael P. Kerner, Esq. for such purpose, (b) she has
carefully read and understands the terms of this Agreement (including the form
of Release attached hereto as EXHIBIT 1), all of which have been fully explained
to her by her legal counsel, (c) she has signed this Agreement freely and
voluntarily and without duress or coercion and with full knowledge of its
significance and consequences and of the rights relinquished, surrendered,
released and discharged hereunder, and (d) the only consideration for signing
this Agreement are the terms stated herein and no other promise, agreement or
representation of any kind has been made to her by any person or entity
whatsoever to cause her to sign this Agreement.
(c) This Agreement may be revoked in writing by Employee at any time
during a period of seven calendar days following its execution by Employee. If
the seven-day revocation period expires without Employee exercising her right of
revocation, the obligations of this Agreement will then become fully effective
without any additional action on the part of any person.
5. PROTECTIVE COVENANTS.
(a) CONFIDENTIALITY. Employee shall not, at any time, disclose, use or
make known for Employee's or another's benefit any confidential information,
knowledge or data of or relating to Company or Buyer (or their respective
subsidiaries or affiliates) in any way acquired or used by Employee during her
employment by Company (collectively, "Confidential Information"). Confidential
Information shall, for purposes of this Agreement, include all matters not
readily available to the public which, for example (i) are of a business nature,
such as information about investments, sales, current, past, potential or
prospective investors, customers or suppliers, operations and procedures,
details of corporate activities, legal and regulatory matters, regulatory
filings and reports, details of contracts and agreements, prices, costs,
equipment, computer software (including source code and object code), data, data
bases and documentation thereof, products, product designs, manufacturing
processes, inventions (whether patentable or unpatentable and whether or not
reduced to practice), innovations, formulae, trade secrets, purchasing methods,
designs, drawings, specifications, plans, proposals, technical data, investment,
financial and marketing plans, profits, markets, operating strengths and
weaknesses and officers, directors, employees, agents and consultants of Company
or Buyer (or their respective subsidiaries or affiliates), or (ii) pertain to
future developments, such as research and development, software developments,
designs and ideas and future investment, marketing or merchandising plans or
ideas; provided, however, that Confidential Information shall not include any
information that Employee (A) can show (1) is or becomes generally available to
the public other than as a result of a disclosure by or on behalf of Employee,
or (2) becomes available to Employee on a non-confidential basis from a
third-party which is not under an obligation to keep such information
confidential, or (B) that Employee becomes legally compelled to disclose,
provided Employee provides Company with prompt written notice of such
requirement so that Company may seek a protective order or other appropriate
remedy, and Employee will consult and reasonably cooperate with Company with
respect to taking steps to resist or narrow the scope of such request (all such
steps to be at Company's cost, including the cost of any legal fees or expenses
incurred by Employee in connection with such request).
(b) NON-SOLICITATION. Employee shall not, at any time before or during
the Employment Period or the Consulting Period, and for a period of one year
thereafter, directly or indirectly, recruit any employee or consultant of
Company or Buyer (or any of their respective subsidiaries or affiliates) or
solicit or induce, or attempt to solicit or induce, any employee or consultant
of Company or Buyer (or any of their respective subsidiaries or affiliates) to
terminate his or her employment, or otherwise to cease his or her relationship,
with Company or Buyer (or any of their respective subsidiaries or affiliates).
(c) COVENANT NOT TO COMPETE. Employee shall not, at any time while
Employee is employed or engaged as a consultant by Company, directly or
indirectly, own, manage, operate, join, control or participate in the ownership,
management, operation or control of, or, at any time while Employee is employed
by Company, directly or indirectly be employed or retained by, render services
to, provide financing or advice to, or otherwise be connected in any manner
with, any corporation, firm, business or person engaged in a business that then
competes with any business of Company or Buyer (or any of their respective
subsidiaries or affiliates); provided, however, that nothing in this Section
6(c) shall prohibit Employee, her affiliates and associates, or any "group" (as
such term is defined in the rules promulgated under the Securities Exchange Act
of 1934) of which Employee or any of her affiliates is a member from acquiring
up to three percent of any class of outstanding equity securities of any
corporation or other entity whose equity securities are regularly traded on a
national securities exchange or the Nasdaq National Market System.
(d) NON-INTERFERENCE. Employee shall not, at any time before or during
the Employment Period or the Consulting Period, and for a period of two years
thereafter, (i) acquire, publicly offer to acquire or agree to acquire, directly
or indirectly, by purchase or otherwise, any voting securities or direct or
indirect rights to acquire any voting securities of any affiliate of Company,
(ii) make or in any way participate in, directly or indirectly, any solicitation
of proxies (as such terms are used in the rules of the Securities and Exchange
Commission) or consents to vote, or seek to advise or influence any person or
entity with respect to the voting of, any voting securities of any affiliate of
Company, (iii) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any merger,
consolidation, business combination, tender or exchange offer, restructuring,
recapitalization or other extraordinary transaction involving any affiliate of
Company, (iv) form, join or in any way participate in any "group" (as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in
connection with any voting securities of any affiliate of Company, (v) otherwise
act, alone or in concert with others, to seek to control or influence the
management, Board or Directors (or their equivalent) or policies of any
affiliate Company, or (vi) have any discussions or enter into any arrangements,
understandings or agreements (whether written or oral) with, or advise, assist
or encourage, any other person in connection with any of the foregoing.
(e) ENFORCEABILITY. Employee hereby acknowledges and agrees that her
skills and services to be provided to Company are unique and that the
limitations placed on Employee by this Section 5 are reasonable in duration and
scope and are necessary for the protection of Company. Employee agrees that if
any such limitations are determined in arbitration or by a court of competent
jurisdiction to be invalid or unenforceable, Employee agrees and submits to the
reduction of such limitations as the court or arbitrator(s) deem reasonable. The
limitations placed on Employee by this Section 5 are of the essence of this
Agreement and they shall be construed and enforced independently. Employee
acknowledges and agrees that the provisions set forth in this Section 5 shall
survive the termination (for any reason whatsoever) or cancellation of this
Agreement.
(f) BREACH. Employee acknowledges and agrees that (i) Company will be
irreparably injured in the event of a breach by Employee of any of her
obligations under this Section 5, (ii) monetary damages will not be an adequate
remedy for any such breach, (iii) Company shall be entitled (without prejudice
to Employee's right to contest any injunction or restraining order based upon a
claim of breach of this Agreement to the extent she reasonably believes, in good
faith, that she has a meritorious defense to such a claim for relief) to
injunctive relief, in addition to, and not in lieu of, any other legal or
equitable remedy which it may have, in the event of any such breach, (iv) the
existence of any claims which Employee may have against Company or Buyer (or any
of their respective subsidiaries or affiliates), whether under this Agreement or
otherwise, will not be a defense to the enforcement by Company of any of its
rights under this Section 5, and (v) Company shall be entitled, without the
necessity of proving actual damages or the posting of any bond or other
security, to obtain injunctive relief for any breach of this Section 5.
6. REPRESENTATIONS AND WARRANTIES. Each of the Company and Employee
represent and warrant to the other that (a) it has the requisite power and
authority to enter into this Agreement and to perform its obligations hereunder,
(b) the execution and delivery of this Agreement by such person, and the
performance of its obligations hereunder, have been duly and validly authorized
by all necessary action and no other proceedings on the part of such person are
necessary to authorize the execution and delivery of this Agreement or the
performance of such person's obligations hereunder, and (c) this Agreement has
been duly and validly executed and delivered by such person and, assuming the
due authorization, execution and delivery by the other party, constitutes a
legal, valid and binding obligation of such person, enforceable against such
person in accordance with its terms.
7. GENERAL.
(a) NOTICES. All notices or other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by facsimile (with confirmation of
receipt), or by registered or certified mail, postage prepaid, return receipt
requested, addressed to Company's registered address or to Employee's last shown
address on Company's records, as applicable.
(b) SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties further agree (without prejudice to a party's
right to contest any injunction or restraining order based upon a claim of
breach of this Agreement to the extent it reasonably believes, in good faith,
that it has a meritorious defense to such a claim for relief) that each party
shall be entitled to an injunction or restraining order to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other right or remedy to which such party may be entitled under
this Agreement, at law or in equity.
(c) ENTIRE AGREEMENT. This Agreement and the Continuing Agreements
constitute the entire agreement and supersede all other prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof.
(d) ASSIGNMENT; PARTIES IN INTEREST. This Agreement shall be binding
on Company's successor by merger as contemplated in the Merger Agreement, and
this Agreement shall inure to the benefit of such successor. Additionally, this
Agreement shall inure to the benefit of and be enforceable by Employee's
executors, administrators, successors, heirs, distributees, devises and
legatees. Other than as set forth expressly in this Section 7(d), neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned by Employee.
(e) GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California (without giving effect to the provisions
thereof relating to conflicts of law). The exclusive venue for the adjudication
of any dispute or proceeding arising out of this Agreement or the performance
hereof shall be the courts located in San Francisco County, California, and the
parties hereto each consents to and hereby submits to the jurisdiction of any
state or federal court located in San Francisco County, California.
(f) HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(g) CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION.
(i) References in this Agreement to any gender shall include
references to all genders. Unless the context otherwise requires, references in
the singular include references in the plural and vice versa. References to a
party to this Agreement or to other agreements described herein means those
Persons executing such agreements.
(ii) The words "include", "including" or "includes" shall be
deemed to be followed by the phrase "without limitation" or the phrase "but not
limited to" in all places where such words appear in this Agreement. The word
"or" shall be deemed to be inclusive.
(iii) This Agreement is the joint drafting product of each of the
parties hereto, and each provision has been subject to negotiation and agreement
and shall not be construed for or against any party as drafter thereof.
(iv) In each case in this Agreement where this Agreement is
represented or warranted to be enforceable will be deemed to include as a
limitation to the extent that enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors' rights generally and to
general equitable principles, whether applied in equity or at law.
(h) COUNTERPARTS; FACSIMILE SIGNATURE. This Agreement may be executed
in two or more counterparts which together shall constitute a single agreement.
Execution of this Agreement may be made by facsimile signature which, for all
purposes, shall be deemed to be an original signature.
(i) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination that any term or other provision hereof
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
(j) AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto and
consented to by Buyer.
(k) WAIVER. The parties hereto may, to the extent permitted by
applicable law and consented to by Buyer, (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto,
(ii) waive any inaccuracies in the representations and warranties by any other
party contained herein or in any documents delivered by any other party pursuant
hereto, and (iii) waive compliance with any of the agreements of any other party
or with any conditions to its own obligations contained herein. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such party and by
Buyer.
(l) LITIGATION. In the event of any litigation between Company and
Employee concerning the terms of this Agreement, the prevailing party will be
entitled to reimbursement of its reasonable costs and expenses, including
reasonable attorneys fees incurred in trial, appellate and post-appellate
proceedings.
IN WITNESS WHEREOF, Company and Employee have caused this Transition
Services, Employment and Consulting Agreement to be duly executed and delivered
as of the date first written above.
PLM INTERNATIONAL, INC.
By: /s/ Robert Tidball
Name: Robert Tidball
Title: Chairman
EMPLOYEE:
/s/Susan C. Santo
ACKNOWLEDGED AND AGREED TO AS
OF THE DATE FIRST WRITTEN ABOVE:
MILPI ACQUISITION CORP.
By: /s/ James A. Coyne
Name: James A. Coyne
Title: Vice President
Schedule 2(d)
Benefit Plans and Arrangements
(a) Cigna POS and PPO Medical Care Plan
(b) MetLife Life, AD&D and Long-Term Disability Insurance Plan
(c) Prudential Dental Maintenance Organization Plan
(d) Paul Revere Supplemental Long-Term Disability Plan
EXHIBIT 1
FORM OF RELEASE
(a) Except for any rights to indemnification existing as of the date hereof
in favor of Employee as provided by law, in Company's certificate of
incorporation, by-laws or other governing documents or in any indemnification
agreement with Company, Employee and her heirs, executors, administrators and
assigns hereby covenant not to sue, and fully release, Company, its past and
present affiliates, and their past and present directors, officers, agents,
representatives, employees, successors and assigns (hereinafter collectively
referred to as "releasees"), jointly and individually, from any and all actions,
causes of action, obligations, liabilities, judgments, suits, debts, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, whether
liquidated or unliquidated, contingent or otherwise, whether specifically
mentioned or not, that Employee ever had, now has or hereafter can, shall or may
have against the releasees for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day following the Trigger
Date; provided, however, that such release shall not apply to acts or omissions
of the past and present directors, officers, agents, representatives or
employees of Company or its affiliates to the extent such acts or omissions are
not related to or arising out of the business or affairs of Company or its
affiliates or any of their respective properties or assets.
(b) Employee acknowledges and agrees that this Release covers, without
limitation, any claims arising out of or connected in any way with her
employment with Company, including any claims for costs or attorneys' fees, any
claims of discrimination on the basis of sex, color, creed, national origin,
ancestry (including any right or claims under the federal laws known as Title
VII and the Equal Pay Act), disability (including any claims under the Americans
with Disabilities Act), age (including any claims under the Age Discrimination
in Employment Act), handicap, citizenship, ethnic characteristics, sexual or
affectional preference or marital status, and also includes, no matter how
denominated or described, any claims of discrimination under any federal, state
or local law, rule, regulation or executive order, and any claims of wrongful
discharge or termination, breach of contract, written or oral, express or
implied, breach of promise, public policy, retaliation, defamation, impairment
of economicopportunity, loss of business opportunity, fraud, misrepresentation
or other tort, perceived disability, history of disability, unpaid compensation
(including salary, wages, benefits, bonuses, severance pay, vacation pay and
sick leave or personal leave pay) and any claims now known to Employee arising
under the Employee Retirement Income Security Act of 1974.
(c) Employee further acknowledges and agrees that this Release extends to
all claims of every kind and nature whatsoever, known or unknown, suspected or
unsuspected, and Employee acknowledges that she may hereafter discover facts in
addition to or different from those which she knows or believes to be true with
respect to the subject matter of this Section 4, but that it is her intention
hereby fully and finally to settle and release all such matters as well and, in
furtherance of that intention, the foregoing release shall be and remain in
effect as a full and complete release notwithstanding the discovery or existence
of such additional or different facts.
(d) The parties represent that they are not aware of any claim by either of
them other than the claims that are released by this Release. Employee
acknowledges that she has been advised by legal counsel and is familiar with the
provisions of California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR"
Employee, being aware of said Section 1542, agrees expressly to waive any
rights she may have thereunder, as well as under any other statute or common law
principles of similar effect.
(e) By signing this Release, Employee acknowledges and agrees that (i) she
has been afforded a reasonable and sufficient period of time of at least 45 days
to review this Release, for deliberation thereon and for negotiation of the
terms thereof, and that she has been specifically encouraged to consult with
legal counsel of her choice before signing this Release (having been informed in
writing that federal age-based claims can only be released if such person is
first notified in writing that he or she has the right to consult with counsel
prior to signing such a release, and having been informed in writing that
benefits substantially similar to those accruing to Employee pursuant to the
Transition Services and Employment Agreement to which this Release is an Exhibit
have only been offered to Stephen M. Bess and Richard K. Brock and not to any
other executive officers of Company) and that she had a fair opportunity to do
so and in fact consulted Michael P. Kerner, Esq. for such purpose, (b) she has
carefully read and understands the terms of this Release, all of which have been
fully explained to her by her legal counsel, (c) she has signed this Release
freely and voluntarily and without duress or coercion and with full knowledge of
its significance and consequences and of the rights relinquished, surrendered,
released and discharged hereunder, and (d) the only consideration for signing
this Release are the terms stated herein and in the Transition Services and
Employment Agreement to which this Release is an Exhibit and no other promise,
agreement or representation of any kind has been made to her by any person or
entity whatsoever to cause her to sign this Release.
(f) This Release may be revoked in writing by Employee at any time during a
period of seven calendar days following its execution by Employee. If the
seven-day revocation period expires without Employee exercising her right of
revocation, the obligations of this Release will then become fully effective
without any additional action on the part of any person.