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AMENDMENT
TO THE
EMPLOYMENT AGREEMENT
This AMENDMENT TO
THE EMPLOYMENT AGREEMENT dated as of December 24, 2008 is by
and between MicroFinancial Incorporated, a Massachusetts
corporation (the “Company”) and Steven LaCreta (the
“Executive”).
WHERAS, the
Company and the Executive entered into an employment agreement as
of May 4, 2005 (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 5(a) 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.”
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2.
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Section 5(c) of the Agreement
is hereby amended by adding the following paragraph to the end
thereof:
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“Any
proposed termination of employment by Executive shall be presumed
to be other than for Good Reason unless (x) Executive first
provides written notice to the Company within ninety (90) days
following the initial existence of the purported Good Reason
condition, (y) the Company has been provided a period of
thirty (30) days after receipt of Executive’s notice during
which to cure, rescind or otherwise remedy the actions, events or
circumstances described in such notice and (z) Executive’s
termination of employment occurs within two years following the
initial existence of the purported Good Reason
condition.”
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3.
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Section 7(b) of the Agreement
is hereby amended in its entirety to read as follows:
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“(b) Other
Than for Cause, Death or Disability. If, at any time prior to the
Effective Date, the Company shall terminate the Executive’s
employment other than for Cause (defined below), death or
Disability, the Company shall (1) pay to the Executive’s
Annual Base Salary payable over 12 months at the same time
that the Company pays other peer executives of the Company
generally, commencing on the first payroll date which is on or
immediately after the 30 th day following the Executive’s termination
of employment, and (2) pay to the Executive any compensation
or bonus previously deferred (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case to the
extent not th
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