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AMENDMENT
TO THE
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDMENT TO
THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of
December 24, 2008 is by and between MicroFinancial
Incorporated, a Massachusetts corporation (the
“Company”) and Richard F. Latour (the
“Executive”).
WHERAS, the
Company and the Executive entered into an amended and restated
employment agreement as of March 15, 2004 (the
“Agreement”); and
WHEREAS, the
parties desire to amend the Agreement to comply with and meet the
requirements of the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended.
NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and
Executive agree as follows:
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1.
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The
definition of “Disability” set forth in Section 7(b) of
the Agreement is hereby amended to read as follows:
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“For purposes of this
Agreement, ‘Disability’ shall mean the Executive is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months. Any question as
to the existence of the Disability of Executive as to which
Executive and the Company cannot agree, shall be determined in
writing by a qualified independent physician mutually acceptable to
Executive and the Company.”
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2.
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Section 7(b) of the Agreement
is further amended by deleting the sentence beginning “Upon
termination of Executive’s employment” in its entirety
and replacing it with the following:
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“Upon termination of
Executive’s employment hereunder as a result of Disability,
Executive shall receive his Base Salary for a period of twelve
(12) months following such termination, in accordance with the
Company’s usual practice for its senior executives,
commencing on the first payroll date which is on or immediately
after the 30 th day following the Executive’s
termination of employment, and any and all accrued but unpaid
amounts earned by Executive under the annual bonus program or
profit-sharing plan as of the date of Disability shall be paid to
Executive in a lump sum within thirty (30) days following his
termination of employment.”
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3.
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Section 7(c) of the Agreement
is hereby amended by deleting the first sentence in its entirety
and replacing it with the following:
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“Upon termination of
Executive’s employment hereunder as a result of
Executive’s death, Executive’s estate shall receive his
Base Salary at the rate in effect at the time of Executive’s
death for a period of twelve (12) months following his death,
in accordance with the Company’s usual practice for
its
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