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EXHIBIT 10.64
THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT TO EMPLOYMENT AGREEMENT ("Third Amendment") is
executed this 10th day of April, 1997 ("Effective Date") and is entered into by
and among PAC RIM HOLDING CORPORATION, a Delaware corporation (the
"Corporation"), THE PACIFIC RIM ASSURANCE COMPANY, a California corporation
("Employer"), and XXXXXXX XXXXX, an individual ("Employee").
1.0 RECITALS
1.1 Employer, Corporation, and Employee previously entered
into an Employment Agreement. The Employment Agreement was amended by the First
Amendment on March 27, 1995, and again amended by the Second Amendment on March
30, 1996.
1.2 As of the date of this third Amendment, the First
Amendment, the Second Amendment, and the Employment Agreement constituted the
entire understanding concerning Employee's employment with Employer.
1.3 Employer, Corporation, and Employee desire to enter into
this Third Amendment upon the terms and conditions set forth herein to amend
the Agreement.
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and agreements
contained herein and for such other good and valuable consideration, the
receipt and adequacy of which is hereby admitted and acknowledged, the Parties
hereto agree as follows:
2.0 DEFINITIONS. All capitalized terms not defined herein shall
have the same meanings ascribed to them in the Employment Agreement and First
Amendment. However, to the extent any definitions used herein differ from the
definitions contained in the First Amendment or the Employment Agreement, the
definitions provided below shall supersede same and shall be controlling in
interpreting the Agreement.
2.1 Agreement: "Agreement" shall collectively refer to the
Employment Agreement, the First Amendment and the Second Amendment.
2.2 First Amendment: "First Amendment" shall mean the
Amendment to Employment Agreement dated March 27, 1995 by and among
Corporation, Employer and Employee.
2.3 Employment Agreement: "Employment Agreement" shall mean
the agreement by and between Employer and Employee on August 16, 1994.
2.4 Parties: "Parties" shall collectively refer to
Corporation, Employer, and Employee.
2.5 Second Amendment: "Second Amendment" shall mean the
Second Amendment to Employment Agreement dated March 30, 1996.
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2.6 Third Amendment: "Third Amendment" shall mean this Third
Amendment to Employment Agreement dated as of the Effective Date.
3.0 AMENDMENTS. The following section of the First Amendment is
amended to read as follows:
3.1 Section 2.2a Change in Control is replaced with the
following language:
"2.2a Change in Control: "Change in Control" shall mean
the closing of an acquisition by no later than June 30,
1997 of more than fifty-one percent (51%) of the
outstanding common stock of Corporation through a merger,
sale, or reorganization by an entity, individual, or group
acting in concert which satisfies all of the following
conditions:
(i) The affirmative vote by a required majority of
the Board of Directors of Corporation (as
required by the By-Laws of Corporation for the
proposed transaction) approving the proposed
transaction subject to shareholder approval;
(ii) The acquisition of 100% of Employee's stock of
Corporation, on the same terms and conditions
as those set forth for the Corporation's other
Shareholders;
(iii) The affirmative vote of a required majority (as
required by the By-Laws of Corporation for the
proposed transaction) of shares of the stock of
Corporation in favor of the proposed
transaction causing the Change in Control as
well as approving this Amendment;
(iv) Subject to the approval of the SEC, Corporation
shall submit the request for
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shareholder approval of certain elements of
this Third Amendment which became effective
upon shareholder approval as a joint resolution
with the proposed transaction effectuating a
Change in Control; and
(v) Employee continuing to provide services to
Employer until the closing of the acquisition
unless any cessation of services was the result
of Termination Without Cause.
A Change in Control shall not occur as a result of any
stock acquisition by Xx. Xxxxxxx X. Pickup or his Affiliates
through the exercise of options, warrants, conversion of
debentures, or through other changes in ownership resulting
from capital infusions recommended by a State regulatory
agency for which Employer is subject or Employee on behalf of
Employer is subject."
4.0 CAPACITIES AND DUTIES. Upon a Change in Control, Section 4.2 is
replaced in its entirety as follows:
"6.3 Employee agrees that, in connection with the acquisition
of 100% of Employee's stock of Corporation upon a Change in
Control, Employee agrees not to violate the provisions of
Section 11.0 or the Confidentiality Agreement during the four
(4) year period after a Change in Control."
5.0 RATIFICATION. To the extent not otherwise modified by the terms
and conditions of this Third Amendment, all of the terms of the Employment
Agreement as previously modified by the First Amendment and previously modified
by the Second Amendment are hereby ratified and republished.
6.0 BOARD OF DIRECTORS' APPROVAL
The execution of this Third Amendment has been authorized by a
duly called meeting of the Board of Directors of the Corporation and Employer.
Employee was absent from such meeting due to a conflict of interest. The
meeting was ratified by a telephonic board meeting. It is acknowledged that any
Change in Control is subject to Shareholder approval, but the Board's action is
all that is necessary to give effect to this Third Amendment. The undersigned
officers of the Corporation and Employer have been duly authorized to execute
this
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Third Amendment on behalf of the Corporation and Employer pursuant to this
resolution of the Board of Directors of each.
The Parties hereto have set their hands the day and year first above
written.
PAC RIM HOLDING CORPORATION,
a Delaware corporation
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Its: Executive Vice President
"CORPORATION"
THE PACIFIC RIM ASSURANCE COMPANY,
a California corporation
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Its: Executive Vice President
"EMPLOYER"
/s/ XXXXXXX XXXXX
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XXXXXXX XXXXX, an individual
"EMPLOYEE"
Drafted by:
THE XXXXX FIRM
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
(714) 474-7368
April 10, 1997
2240H-22.2(C)
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EXHIBIT A
CONSENT TO AMENDMENT AND AGREEMENT
I, the undersigned, am the spouse of Xxxxxxx Xxxxx. I have read the
Employment Agreement dated April 15, 1994 ("Employment Agreement"), the
Amendment to Employment Agreement dated March 27, 1995 ("First Amendment"), the
Second Amendment to Employment Agreement dated March 30, 1996 ("Second
Amendment"), and this Third Amendment to the Employment Agreement dated April
10, 1997 by and among Pac Rim Holding Corporation, a Delaware corporation. The
Pacific Rim Assurance Company, a California corporation ("Corporation") and my
spouse, Xxxxxxx Xxxxx, and clearly understand the provisions thereof. I am
aware that by the provisions of said Amendment and Agreement my spouse has
agreed to certain provisions regarding his employment with the aforementioned
Corporation, including the expiration of certain stock options according to
their terms and the grant of new stock options and my community interest
therein, if any, in accordance with the terms and provisions of said Third
Amendment, Second Amendment, First Amendment and Employment Agreement. I
hereby approve of and consent to the provisions of said Third Amendment, Second
Amendment, First Amendment and Employment Agreement, in its entirety.
DATED: April 10, 1997
/s/ XXXXX XXXXX
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