SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement") is made and entered into on this
__ day of August, 1999, by and between PLM INTERNATIONAL, INC., its successors
and/or assigns (the "Company"), and _____________ ("Employee").
WHEREAS, Employee currently holds the position(s) of __________ of the
Company; and
WHEREAS, in the event any person or group proposes a change in control
transaction (as defined in Section 2 of this Agreement), the Board of Directors
would consider such proposal in order to determine whether it was fair and in
the best interest of the shareholders; and
WHEREAS, any such consideration by the Board of Directors may lead to
uncertainty regarding the future path of the Company and the long-term prospects
for executive employment with the Company; and
WHEREAS, the Company's Board of Directors believes it is important to
the enhancement of shareholder value that, notwithstanding such uncertainty,
Employee act vigorously and constructively in any negotiations being conducted
in connection with a change in control transaction to achieve the result most
favorable to the Company's shareholders and continue to manage the on-going
business of the Company in order to achieve the most positive results
attainable; and
WHEREAS, as an inducement for Employee to remain in the employ of the
Company before and after a change in control transaction, this Agreement
provides for certain incentives for Employee upon a change in control and for
certain severance benefits to be paid and provided to Employee in the event
Employee's employment is terminated without cause (as defined herein) following
or resulting from a change in control transaction.
NOW, THEREFORE, in consideration of the above premises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:
1. Term. The term of this Agreement shall commence on the date hereof
and shall continue (i) until December 31, 1999 so long as no Change in Control
(as defined below) has occurred on or before December 31, 1999; or (ii) until
all obligations under this Agreement have been met in the event a Change in
Control has occurred on or before December 31, 1999.
2. Change in Control.
A. For the purposes of this Agreement only, the term "Change
in Control" shall mean the occurrence of any one of the following events:
(i) Any person or group (a "Person"), within the
meaning of Sections 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), acquiring
"beneficial ownership" ("Beneficial Ownership"), as defined in
Rule 13d-3 under the Exchange Act, of securities of the
Company representing more than fifty percent (50%) of the
combined voting power of the Company's then outstanding
securities; provided, however, in determining whether a Change
in Control has occurred, voting securities which are acquired
in a "Non-Control Acquisition" (as hereinafter defined) shall
not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition
by (a) an employee benefit plan (or trust forming a part
thereof) maintained by the Company or any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interests is owned, directly or
indirectly, by the Company (for purposes of this definition, a
"Subsidiary"), (b) the Company or its Subsidiaries, or (c) any
Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(ii) A merger, consolidation or reorganization
(collectively, a "Transaction") involving the Company unless
such Transaction is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a Transaction involving
the Company where:
(a) The stockholders of the Company
immediately before such Transaction own, directly or
indirectly, immediately following such Transaction,
at least fifty percent (50%) of the combined voting
power of the outstanding voting securities of the
corporation resulting from such Transaction (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the voting
securities of the Company immediately before such
Transaction, or
(b) No Person, other than (1) the Company,
(2) any Subsidiary, or (3) any employee benefit plan
(or any trust forming a part thereof) maintained by
the Company or any Subsidiary, has Beneficial
Ownership of more than fifty percent (50%) of the
combined voting power of the Surviving Corporation's
then outstanding voting securities;
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Subsidiary of the Company);
provided however, that in no event shall the sale or other
disposition of the Company's subsidiary American Finance
Group, Inc. (AFG) by itself, or the sale or other disposition
of the Company's subsidiary PLM Rental, Inc. (PLMR) by itself,
be deemed to be a sale or other disposition of all or
substantially all of the assets of the Company for the
purposes of this Agreement; and further provided however, that
in the event either AFG or PLMR is sold or otherwise disposed
of during the term of this Agreement, then the later sale or
other disposition of PLMR (in the case of an earlier sale or
disposition of AFG) or AFG (in the case of an earlier sale or
disposition of PLMR) shall be deemed to be a sale or other
disposition of all or substantially all of the assets of the
Company; or
(iv) The stockholders of the Company approve a plan
of dissolution or liquidation of the Company.
B. In the event that a Change in Control transaction as
defined in this Agreement occurs, and such transaction is also deemed to be a
Change in Control as defined in and under the Employment Agreement (the
"Employment Agreement") dated as of _________ between the Company and Employee
(specifically, a majority of the members of the Continuing Directors of the
Board of Directors of the Company does not approve the Change in Control event
specifically for purposes of the Employment Agreement), then the terms and
conditions of the Employment Agreement, including but not limited to Sections
10.2, 11, 12 and 13 thereof, shall govern and supercede this Agreement.
3. Stock Options and Grants.
A. Upon the occurrence of a Change in Control, any and all
options to purchase stock and grants of stock (common or otherwise) in the
Company granted to Employee pursuant to any plan or otherwise, including options
granted pursuant to the 1988 Management Stock Compensation Plan and/or the 1998
Management Stock Compensation Plan, and any and all grants of stock in the
Company granted to Employee pursuant to the 1996 Mandatory Management Stock
Bonus Plan (collectively, any or all of these plans shall be referred to herein
as the "Stock Plans"), shall become immediately accelerated and fully vested and
any restrictions on such options and grants shall, to the extent permissible
under applicable securities laws, fully lapse. The Company shall endeavor to
cause any restrictions on the options or grants not lapsed by operation of this
Section 3 to so lapse.
B. Upon the vesting of all such options and grants (whether
pursuant to this Section 3 or Section 6(C)(ii) below) and, in the case of
options, so long as such options have not expired, Employee may elect by written
notice to the Company at any time following such vesting that the Company
"cash-out" such options and/or grants by paying to Employee within five (5) days
of the notice the value of the options and/or grants so long as Employee
surrenders to the Company, and agrees to the cancellation of, the options or
grants. The value of the options and/or grants shall be calculated based on the
higher of (i) the price paid to the Company's shareholders in connection with a
tender offer that results in a Change in Control or (ii) the average daily
closing price of the common stock of the Company for the ten days preceding the
date of the Change in Control (or if the accelerated vesting occurs pursuant to
Section 6(C)(ii), for the ten days preceding the Date of Termination (as defined
below)), less (in the case of options only) the exercise price of the option. In
the event Employee does not elect to "cash-out" pursuant to Section 3(B), then
Employee's rights regarding such options and grants shall be as set forth in the
Stock Plans and agreements governing such options and grants, except that
Employee shall be deemed to be fully vested and any restrictions on such options
and grants shall remain fully lapsed.
4. Termination By Company In Connection With a Change in Control.
A. In the event that Employee's employment is terminated by
the Company subsequent to or resulting from a Change in Control for a reason
other than Cause or Disability, the Company shall pay Employee the Severance
Benefits specified in Section 6(C).
B. For purposes of this Agreement, "Cause" shall be limited
to:
(i) The willful and continued failure by Employee to
perform his/her day to day responsibilities substantially in
the same manner as performed prior to the Change in Control
(other than any failure resulting from Employee's incapacity
due to physical or mental illness), which has not been cured
within ten (10) days after written demand for substantial
performance is delivered by the Company to Employee, which
demand specifically identifies the manner in which Employee
has not substantially performed his/her day to day
responsibilities. The financial condition of the Company
(including any subsidiary, division or department thereof),
and/or Employee's contribution thereto, shall not be
considered for the purposes of determining whether Employee
has willfully failed to perform his/her day to day
responsibilities;
(ii) A willful and intentional act or omission by
Employee which is, in the reasonable determination of the
Company, materially injurious to the Company, monetarily or
otherwise. For purposes of subsection (i) above and this
subsection (ii), no act or omission on Employee's part shall
be considered willful and intentional unless done, or omitted
to be done, by him/her not in good faith and without the
reasonable belief that his/her action(s) or omission(s) was in
the best interests of the Company; or
(iii) The conviction of Employee of, or his/her
admission or plea of nolo contendere to, a crime involving an
act of moral turpitude, which is a felony or which results or
is intended to result, directly or indirectly, in gain or
personal enrichment of Employee, relatives of Employee, or
their affiliates at the expense of the Company;
provided, however, that, notwithstanding anything to the contrary contained in
this Section 4(B), "Cause" shall not be deemed to include a refusal by Employee
to execute any certificate or document that Employee in good faith determines
contains any untrue statement of a material fact.
C. For the purposes of this Agreement, Disability shall mean
if, as a result of Employee's incapacity due to physical or mental illness,
Employee shall have been absent or substantially absent from his/her duties
hereunder for a period of six (6) consecutive months, and within thirty (30)
days after a Notice of Termination (as hereinafter defined) is given, which
Notice of Termination may be given before or after the end of such six month
period, Employee shall not have returned to the performance of his/her duties
hereunder on a full-time basis, Employee's employment shall terminate upon the
expiration of such thirty (30) days. Employee's absence or substantial absence
from his/her duties will be treated as resulting from incapacity due to physical
or mental illness if Employee is "totally disabled from his/her own occupation."
Total disability from Employee's own occupation will exist where (i) because of
sickness or injury, Employee cannot perform the important duties of his/her
occupation, (ii) Employee is either receiving Doctor's Care or has furnished
written proof acceptable to the Company that further Doctor's Care would be of
no benefit, and (iii) Employee does not work at all. Doctor's Care means regular
and personal care of a Doctor which, under prevailing medical standards, is
appropriate for the condition causing the disability.
5. Termination by Employee.
A. Employee may terminate his/her employment during the term
of this Agreement upon thirty (30) days' Notice of Termination to the Company
for any reason. If Employee terminates his/her employment hereunder subsequent
to a Change in Control and such termination is made for any of the reasons
listed in Section 5(B) (such reason(s) to be detailed in the Notice of
Termination), such termination shall be deemed to have been done for good reason
("Good Reason") and the Company shall pay Employee the Severance Benefits
specified in Section 6(C), below.
B. Reasons constituting "Good Reason" shall include:
(i) Any breach by the Company of any material
provision of this Agreement which has not been cured within
ten (10) days after written notice detailing such
non-compliance is given by Employee to the Company;
(ii) Any demonstrable and material diminution of the
base and/or incentive compensation, duties, responsibilities,
authority or powers of Employee as they relate to any
positions or offices held by Employee during the term of this
Agreement; provided that Employee provides a reasonable
description of any such diminution(s) and a statement that
Employee finds, in good faith, such diminution to be a
material diminution and that, as such, he/she elects to
terminate his/her employment hereunder for Good Reason;
(iii) The failure of the Company to include Employee
in any Employee Benefit Plan or Incentive Compensation Plan
for which Employee has previously participated or would
reasonably expect to participate in. Employee may reasonably
expect to participate in an Employee Benefit Plan or Incentive
Compensation Plan if, without limitation, other employees of
the Company with similar titles, levels of responsibilities or
salaries participate or have participated in such plan; or
(iv) Any requirement by the Company that Employee
relocate his/her primary business office to a geographical
area greater than twenty (20) miles from the Company 's
principal executive offices as existing on January 1, 1999, or
if Employee is based in an office other than the Company's
principal executive offices, twenty (20) miles from the
Company's office where Employee is based as of January 1,
1999.
C. In the event Employee terminates his/her employment for
Good Reason and the Company disputes that the termination was for Good Reason,
the Company shall have the burden of proving that any such reason was not "Good
Reason".
6. Compensation Upon Termination.
A. Termination For Cause. Following a Change in Control, if
Employee's employment is terminated for Cause as defined in this Agreement, the
Company shall pay Employee his/her full Base Salary (and any accrued but unused
vacation and personal days) through the Date of Termination at the rate in
effect at the time Notice of Termination is given, and the Company shall have no
further obligations to Employee under this Agreement. The rights, limitations
and obligations of each of the Employee and the Company under any other
agreement or plan, including but not limited to any stock option or bonus plan,
deferred compensation plan and related agreement(s), as of the Date of
Termination shall remain in full force and effect.
B. Termination for Disability. Following a Change in Control,
if Employee's employment is terminated for Disability as defined in this
Agreement, the Company shall pay to Employee his/her full Base Salary through
the Date of Termination at the rate in effect at the time Notice of Termination
is given. The Company shall also pay to Employee any accrued but unused vacation
and personal days, and the Company shall also provide benefits to Employee
pursuant to the standard policy of the Company with respect to terminated
disabled employees. The rights, limitations and obligations of each of the
Employee and the Company under any other agreement or plan, including but not
limited to any stock option or bonus plan, deferred compensation plan and
related agreement(s), as of the Date of Termination shall remain in full force
and effect.
C. Termination Without Cause or Termination by Employee For
Good Reason. If, (a) subsequent to or resulting from a Change in Control the
Company terminates Employee's employment hereunder other than for Cause or
Disability, or (b) subsequent to a Change in Control Employee terminates his/her
employment for Good Reason, the Company shall, in addition to paying Employee
his/her full Base Salary through the Date of Termination at the rate in effect
at the time the Notice of Termination is given and any accrued but unused
vacation and personal days (as required by law), pay to Employee within seven
(7) business days of the Date of Termination, and provide to Employee, the
following severance benefits:
(i) The Company shall pay to Employee a lump sum
amount equal to _________ (__) months of Employee's Base
Salary at the highest rate in effect during the twelve (12)
months immediately preceding the Date of Termination, less
customary payroll deductions;
(ii) Any and all options to purchase stock (common or
otherwise) in the Company granted to Employee following a
Change in Control pursuant to any plan or otherwise, and any
and all grants of stock in the Company granted to Employee
following a Change in Control pursuant to any plan or
otherwise, shall become immediately accelerated and fully
vested and any restrictions on such options, grants or
equivalent or similar rights shall, to the extent permissible
under applicable securities laws, fully lapse. The Company
shall endeavor to cause any restrictions on the options,
grants or equivalent or similar rights not lapsed by operation
of this Section 6(C) to so lapse. Employee shall have the same
rights in such accelerated and vested options and grants as
provided in Section 3(B) and the Company shall pay to Employee
the value of the options and/or grants upon receipt of
Employee's written notice of his/her election to "cash-out"
pursuant to Section 3(B);
(iii) At the Employee's election by written notice to
the Company made within four (4) business days following the
Date of Termination, the Company shall pay to Employee in a
lump sum the total amount of any Monthly Executive
Compensation Benefit payments that are payable under the
Executive Deferred Compensation Agreement (the "Executive
Deferred Compensation Agreement") dated as of ______, between
the Company and Employee, which amount shall have been
determined pursuant to the terms of Sections 5(a) and 5(b) of
the Executive Deferred Compensation Agreement after taking
into consideration the automatic acceleration of vesting as
provided in Section 10.1, including Section 10.1(a) and
10.1(b), of the Executive Deferred Compensation Agreement. In
the event Employee does not elect to a lump sum payment of the
total amount of any Monthly Executive Compensation Benefit
payments that are payable under the Executive Deferred
Compensation Agreement, then such amounts shall be paid
pursuant to the terms of such Executive Deferred Compensation
Agreement; and
(iv) Employee shall continue to participate in all
life insurance, medical, health, dental and disability plans,
programs or arrangements ("Insurance Plans") in which Employee
participated immediately prior to the Date of Termination on
the same terms as Employee participated immediately prior to
the Date of Termination for the shorter period of (a) months
from the Date of Termination or (b) Employee's commencement of
full time employment with a new company that provides Employee
with benefits at least as favorable as those provided by the
Company; provided that Employee's continued participation is
possible under the general terms and provisions of such plans
and programs and Employee will continue to be obligated to pay
the same employee portion of any premium and any deductible
and/or co-payments associated with such insurance Plans as was
required immediately prior to the Date of Termination.
Employee's right to continued group benefits after any period
covered by the Company will be determined in accordance with
federal and state law.
(v) The payments and benefits provided for in this
Section 6(C) are in addition to, and shall not be deemed to be
in lieu of, any other payments and/or benefits to which
Employee is entitled, including without limitation any and all
payments and benefits under any other pension and retirement
plan and arrangement, supplemental pension and retirement plan
and arrangement, stock option plan(s), and/or insurance and
disability plans.
D. Other Termination by Employee. If following a Change in
Control Employee terminates his/her employment for any reason other than Good
Reason, the Company shall pay to Employee his/her full Base Salary through the
Date of Termination at the rate in effect at the time Notice of Termination is
given and any accrued but unused vacation and personal days, and the Company
shall have no further obligations to Employee under this Agreement. The rights,
limitations and obligations of each of the Employee and the Company under any
other agreement or plan, including but not limited to any stock option or bonus
plan, deferred compensation plan and related agreement(s), as of the Date of
Termination shall remain in full force and effect.
E. Termination Prior to a Change in Control. This Agreement
does not provide for the payment or provision of severance benefits in
connection with a termination by Employee or the Company prior to and not in
connection with a Change in Control. Employee's rights to any such benefits
shall continue to be governed by law or other written agreement, if any exists
between Employee and the Company, and nothing in this Agreement is intended to
change, or shall be construed as changing, any of the legal or contractual
rights of either party to terminate Employee's employment (for Cause, at-will,
for Good Reason, or otherwise) prior to and not in connection with a Change in
Control.
F. Section 280G. Notwithstanding any other provisions of this
Agreement or any other agreement between the Company and the Executive, in the
event that any payment or benefit received or to be received by the Executive in
connection with a Change in Control or the termination of the Executive's
employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company or any Person whose actions result in
a Change in Control or any Person affiliated with the Company or such Person)
(all such payments and benefits, including the severance benefits provided
hereunder, being hereinafter called "Total Payments") would not be deductible
(in whole or part), by the Company, an affiliate or Person making such payment
or providing such benefit 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 portion of the Total Payments deductible (and after taking into account any
reduction in the Total Payments provided by reason of section 280G of the Code
in such other plan, arrangement or agreement), the benefits provided hereunder
shall be reduced (if necessary, to zero); provided, however, that,
notwithstanding the terms of any other plan or agreement, the Executive may
elect to have the benefits payable under any other plan or agreement reduced (or
eliminated) prior to any reduction of the benefits payable under this Agreement,
which may include, in the case of the Executive Deferred Compensation Agreement
(if Employee is a party to such agreement), an election to reduce the
Executive's Compensation Period under the Executive Deferred Compensation
Agreement (without increasing the amount determined under Section 1.1 of the
Executive Deferred Compensation Agreement as Executive's Monthly Deferred
Compensation Benefit).
(i) For purposes of this limitation, (a) no portion
of the Total Payments the receipt or enjoyment of which the
Executive shall have waived at such time and in such manner as
not to constitute a "payment" within the meaning of section
280G(b) of the Code shall be taken into account, (b) no
portion of the Total Payments shall be taken into account
that, in the opinion of tax counsel ("Tax Counsel") selected
by the Executive and reasonably accepted by the Company, does
not constitute a "parachute payment" within the meaning of
section 280G(b)(2) of the Code, including by reason of section
280G(b)(4)(A) of the Code, (c) 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
clauses (a) or (b)) in their entirety constitute reasonable
compensation for services actually rendered within the meaning
of section 280G(b)(4)(B) of the Code or are otherwise not
subject to disallowance as deductions by reason of section
280G of the Code, in the opinion of Tax Counsel, and (d) the
value of any noncash benefit or any deferred payment or
benefit included in the Total Payments shall be determined in
accordance with the principles of sections 280G(d)(3) and (4)
of the Code.
(ii) If it is established pursuant to a final
determination of a court or an Internal Revenue Service
proceeding that, notwithstanding the good faith of the
Executive and the Company in applying the terms of this
Section 6(F), the Total Payments paid to or for the
Executive's benefit are in an amount that would result in any
portion of such Total Payments being subject to the Excise
Tax, then, if such repayment would result in (a) no portion of
the remaining Total Payments being subject to the Excise Tax
and (b) a dollar-for-dollar reduction in the Executive's
taxable income and wages for purposes of federal, state and
local income and employment taxes, the Executive shall have an
obligation to pay the Company upon demand an amount equal to
the sum of (x) the excess of the Total Payments paid to or for
the Executive's benefit over the Total Payments that could
have been paid to or for the Executive's benefit without any
portion of such Total Payments being subject to the Excise
Tax; and (y) interest on the amount set forth in clause (x) of
this sentence at the rate provided in section 1274(b)(2)(B) of
the Code from the date of the Executive's receipt of such
excess until the date of such payment.
(iii) By execution and delivery of this Agreement,
the provisions of Section 10.4 of the Executive Deferred
Compensation Agreement are hereby superseded and such section
is hereby declared null and void.
7. Mitigation. Employee shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other
employment or otherwise and, except as otherwise provided in Section 6(C)(iv),
no payment or benefit provided for in this Agreement shall be reduced by any
compensation earned by Employee as the result of employment by another employer
after the termination of his/her employment with the Company.
8. Other Definitions. The following definitions shall apply for
purposes of this Agreement:
A. Notice of Termination. Any purported termination by the
Company or by Employee shall be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon. Any purported termination of Employee's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of this paragraph shall not be effective.
B. Date of Termination. "Date of Termination" shall mean, as
applicable, (a) if Employee's employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that Employee shall not
have returned to the performance of his/her duties on a full-time basis during
such thirty (30) day period), (b) the date specified in the Notice of
Termination in compliance with the terms of this Agreement, or (c) if no date is
specified, the date on which a Notice of Termination is given.
9. Successors; Binding Agreement.
A. The Company shall require any successors or assigns
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent as if they were an original party hereto, and this Agreement shall inure
to the benefit of any such successor or assign.
B. This Agreement shall inure to the benefit of and be
enforceable by Employee's executors, administrators, successors, heirs,
distributes, devisees and legatees.
10. Other Agreements. Except as expressly set forth herein, nothing in
this Agreement is intended to alter the obligations of the Company and/or the
Employee in connection with any other written agreement between the Company and
the Employee, including any employment agreement, option agreement, deferred
compensation agreement, confidentiality agreement or indemnity agreement.
11. Covenant Not to Compete. In consideration of the mutual terms and
agreements set forth herein, Employee hereby agrees that until the first
anniversary of Employee's Date of Termination, (i) Employee will not recruit any
employee of the Company or its subsidiaries or solicit or induce, or attempt to
solicit or induce, any employee of the Company or its subsidiaries, provided
that nothing herein shall preclude Employee from hiring any person who contacts
Employee for employment and who has not been employed by the Company or its
subsidiaries at any time during the preceding six months, and (ii) provided that
Employee has received the severance benefits described in Section 6(C) hereof,
Employee will not solicit, divert or take away, or attempt to solicit, divert or
take away, the business or patronage of any of existing clients, customers or
accounts of the Company or its Subsidiaries. For purposes of this Section 11, a
client, customer or account of the Company shall be deemed to be an existing
client, customer or account if such client, customer or account is a party to a
rental, term or master lease with the Company or is being invoiced on a regular
basis by the Company as of the Date of Termination.
12. Miscellaneous.
12.1 Written notices required by this Agreement shall be delivered to
the Company or Employee in person or sent by overnight courier or certified
mail, with a return receipt requested, to the Company's registered address and
to Employee's last shown address on the Company's records, respectively. Notice
sent by certified mail shall be deemed to be delivered two days after mailing,
and all other notices shall be deemed to be delivered when received.
12.2 This Agreement contains the full and complete understanding of the
parties regarding the subject matter contained herein and supersedes all prior
representations, promises, agreements and warranties, whether oral or written.
12.3 This Agreement shall be governed by and interpreted according to
the laws of the state of California.
12.4 The captions of the various sections of this Agreement are
inserted only for convenience and shall not be considered in construing this
Agreement.
12.5 This Agreement can be modified, amended or any of its terms waived
only by a writing signed by both parties.
12.6 If any provision of this Agreement shall be held invalid, illegal
or unenforceable, the remaining provisions of the Agreement shall remain in full
force and effect and the invalid, illegal or unenforceable provision shall be
limited or eliminated only to the extent necessary to remove such invalidity,
illegality or unenforceability in accordance with the applicable law at that
time.
12.7 In the event the Company is party to a transaction which is
otherwise intended to qualify for "pooling of interests accounting treatment,
then (A) this Agreement shall, to the extent practicable, be interpreted so as
to permit such accounting treatment, and (B) to the extent that the application
of clause (A) of this Section 12.7 does not preserve the availability of such
accounting treatment, then, to the extent that any provision of the Agreement
disqualifies the transaction as a "pooling" transaction (including if
applicable, the entire Agreement), such provision shall be null and void as of
the date hereof. All determinations under this Section 12.7 shall be made by the
accounting firm whose opinion with respect to "pooling of interests" is required
as a condition of consummation of such transaction.
12.8 If either party institutes an action to enforce the terms of this
Agreement, the prevailing party in such action shall be entitled to recover
reasonable attorneys' fee, costs and expenses.
12.9 No remedy made available to either party by any of the provisions
of this Agreement is intended to be exclusive of any other remedy. Each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder as well as those remedies existing at law, in equity, by statute
or otherwise.
IN WITNESS WHEREOF, the parties have executed this document under seal
as of the date specified above.
PLM INTERNATIONAL, INC. EMPLOYEE
By: __________________________ _________________________________
Its: __________________________
ATTEST: _______________________ ATTEST: _____________________