EXHIBIT 10.5(ii)
SEVERANCE AGREEMENT
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THIS AGREEMENT is made and entered into as of this 23rd day of March, 1999,
by and between THE CENTRIS GROUP, INC., a Delaware corporation (the "Company"),
and Xxxxx X. Xxxxxx ("Executive").
RECITALS
WHEREAS, the Executive is currently employed by the Company and is considered
a key employee of the Company; and
WHEREAS, the Company desires to retain the services of the Executive; and
WHEREAS, the Company and the Executive desire to set forth the amounts
payable and benefits to be provided by the Company to the Executive in the event
of a termination of the Executive's employment with the Company under the
circumstances set forth herein after the happening of a Change in Control (as
defined herein);
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, and intending to be legally bound hereby, the parties agree as
follows:
AGREEMENT
1. Continued Employment. In reliance upon the promises of the Company
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hereinafter contained, the Executive agrees that, for a period of not less than
six (6) months commencing on the date set forth above, and subject to reasonable
absences for illness,
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holiday and vacation or personal leave of absence in accordance with the
Company's policies and practices in effect on the date hereof, the Executive
will continue his employment with the Company and shall devote his best efforts
to such duties as may be assigned to him by the Company from time to time.
2. Other Severance Arrangements. Except to the extent specifically set forth
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herein, in the event of the termination of the Executive's employment with the
Company, the Executive shall be entitled to receive any Company benefits payable
under any employee benefit plan, program, policy or arrangement as such may then
be in effect, including all such termination arrangements with Executive that
may be described in any employment agreement.
3. Effective Date. This Agreement shall be effective as of the date first
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above written ("Effective Date") and shall continue and remain in full force and
effect until the termination of Executive's employment with the Company, unless
this Agreement is earlier terminated by the parties in writing. The completion
of six (6) months of employment with the Company by the Executive as set forth
in Section 1 shall not be a condition precedent to the effectiveness of this
Agreement or to the payments of amounts or provision of benefits hereunder in
the event the Executive's employment with the Company is terminated under the
circumstances described in Section 4(b).
4. Termination of Employment.
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(a) Events Requiring No Payments Under Section 5: In the event the
Executive's employment with the Company is terminated under any of the following
circumstances, no
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payments shall be or become due and owing, and the Company shall have no other
obligations under Section 5 of this Agreement:
(i) By either party for any reason prior to the happening of a Change
in Control (as hereinafter defined);
(ii) By either party for any reason at any time more than two (2) years
after a Change in Control;
(iii) By the Company at any time, whether prior to, contemporaneous
with or subsequent to a Change in Control, for reason of "Cause" (as
hereinafter defined) or due to the request or demand of any regulatory
authority; or
(iv) By the Executive at any time, whether prior to, contemporaneous
with or subject to a Change in Control, upon his retirement or resignation
for reasons other than "Good Reason" (as hereinafter defined).
Notwithstanding the foregoing, nothing contained in this Section 4(a) shall
prevent the Executive or his spouse, heirs, estate or personal representative
from receiving any amounts payable under any other plan, program, policy or
arrangement that is not a severance plan, program, policy or arrangement.
(b) Events Requiring Payments Under Section 5: In the event the
Executive's employment with the Company is terminated under any of the following
circumstances set
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forth in (i) and (ii) below, the Company shall make the payments and provide the
benefits as set forth in Section 5:
(i) By the Company, contemporaneously with or within two (2) years
after the happening of a Change in Control, for any reason other than (1) for
Cause or (2) due to the request or demand of any regulatory authority; or
(ii) By the Executive, contemporaneously with or within two (2) years
after a Change in Control, for Good Reason.
(c) For purposes of this Agreement, the term "Cause" shall mean (i) the
commission by Executive of any material act of fraud or dishonesty; (ii) a final
conviction of Executive of a felony in either a state or federal court
proceeding; (iii) intentional and willful failure by Executive to faithfully
carry out his duties and responsibilities as an employee of the Company, after
reasonable notice in writing to and discussion thereafter with Executive; and
(iv) Executive engaging in activities which place Executive in a direct or
indirect conflict with the Company or its interests. The decision as to the
existence of "Cause," as described in (i), (iii) and (iv) above, shall be
determined by a majority of the Company's nonemployee Directors; provided,
however, if there is a change in the composition of the Board such that those
persons who served as nonemployee Directors on the Effective Date of this
Agreement represent less than fifty percent (50%) of the total number of
nonemployee Directors, then "Cause" shall be determined by use of the Settlement
of Disputes provisions set forth in Section 8 of this Agreement.
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(d) For purposes of this Agreement, the term "Good Reason" shall mean the
following five (5) events; provided, however, that Executive may waive in
writing his objection to the occurrence of any such event, in which case such
event will no longer constitute "Good Reason":
(i) Any material breach by the Company of its obligations contained
in this Agreement;
(ii) The assignment to the Executive of any duties inconsistent with
the status of his position with the Company as such duties and position
existed on the day immediately preceding the happening of a Change in
Control, or an alteration in the nature or status of the Executive's duties
and responsibilities that renders the Executive's position to be of less
dignity, responsibility or scope from that which existed on the day
immediately preceding the happening of a Change in Control; provided,
however, it shall not be an event of Good Reason if the Executive is assigned
additional duties for the Company or any affiliate or subsidiary of the
Company which are not inconsistent with the duties described in Section 1
hereof so long as the aggregate of all duties assigned to the Executive in
connection with his service with the Company, its affiliates or subsidiaries
do not require the Executive to devote, on a consistent and sustained basis,
substantially more time than other senior level executives of the Company are
required to devote to their duties;
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(iii) A reduction by the Company in the Executive's annual base salary
as was in effect on the day immediately preceding the happening of a Change
in Control or as the same may be increased from time to time;
(iv) The failure of the Company to continue in effect of the benefits
enjoyed by the Executive under the Company's 1988 Employee Stock Plan or its
1991 Employee Stock Option Plan or under the Company's Incentive Compensation
Program, or any other compensation plan, program or arrangement, or any of
the Company's pension, retirement, profit sharing, savings, life insurance,
medical, health-and-accident, disability or other employee benefit plans,
programs or arrangements as they existed on the day immediately preceding the
happening of a Change in Control, or the failure of the Company to continue
the Executive's participation therein; or the failure by the Company to
provide the Executive with the number of paid vacation days to which he is
entitled on the basis of years of service and position with the Company in
accordance with the Company's normal vacation policy, or the failure of the
Company to continue or if the Company adversely changes or reduces other
specific contractual benefits or perquisites provided to Executive as they
existed on the day immediately preceding the happening of a Change in
Control, including, but not limited to, providing an automobile or an
automobile allowance, club memberships, and dues for professional associates
for Executive;
(v) The assignment of the Executive to an office which is located more
than 50 miles from the office at which the Executive was primarily performing
his duties on the day immediately preceding the happening of a Change in
Control.
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(e) For purposes of this Agreement, a "Change in Control" shall mean the
occurrence, after the Effective Date, of any of the following events:
(i) At any time during the term of this Agreement, any "Person" (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") and the regulations of the Securities and
Exchange Commission (the "SEC") thereunder, each as in effect on the
Effective Date of this Agreement (including any such Persons that may be
deemed to be acting in concert with respect to the Company or the
acquisition, ownership or voting of Company securities) becomes, directly or
indirectly, the "Beneficial Owner" (as defined in Rule 13d-3 under the
Exchange Act and the regulations of the SEC thereunder, each as in effect on
the Effective Date of this Agreement), without the approval of the Board of
Directors of the Company, of outstanding securities of the Company
representing 10% or more of the combined voting power of the Company's then
outstanding securities (except that if such person subsequently acquires more
than 25% of the combined voting power of the Company's then outstanding
securities, a "Change in Control" shall be deemed to occur at that time);
provided, however, that the concept of any Person becoming the owner of 10%
or more of the combined voting shares shall not include: (A) the Company,
any wholly owned subsidiary of the Company, any employee benefit plan of the
Company or of a subsidiary of the Company, or any Person holding voting
shares for or pursuant to the terms of any such employee benefit plan; or (B)
any Person if such Person would not otherwise be a 10% stockholder but for a
reduction in
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the number of outstanding voting shares resulting from a stock repurchase
program or other similar plan instituted by the Company or from a self-tender
offer of the Company, which stock repurchase plan or Company self-tender
offer commenced on or after the Effective Date of this Agreement; provided,
however, that the concept of becoming the owner of 10% or more of the
combined voting shares shall include such Beneficial Owner after the first
date upon which (x) such Person, since the date of commencement of such stock
repurchase plan or Company self-tender offer, shall have acquired Beneficial
Ownership of, in the aggregate, additional voting shares of the Company
representing 1% or more of the voting shares then outstanding, and (y) such
Person, together with all affiliates and associates of such Person, shall
Beneficially Own 10% or more of the voting shares of the Company then
outstanding. In calculating the percentage of outstanding voting shares that
are Beneficially Owned by a Person for purposes of this subsection, voting
shares that are Beneficially Owned by such Person shall be deemed
outstanding, and voting shares that are not Beneficially Owned by such Person
and that are subject to issuance upon the exercise or conversion of
outstanding conversion rights, exchange rights, warrants or options shall not
be deemed outstanding. The Board of Directors shall have the absolute and
unfettered authority to make the final determination as to whether any Person
is or is not to be considered a 10% Stockholder for purposes of that term in
this Agreement, which determination shall be conclusive for all purposes and
shall be binding upon the Company and upon the Executive;
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(ii) At any time during the term of this Agreement the composition of
the Board of Directors of the Company is changed due to a solicitation in
opposition to management's nominees, such that persons who were directors of
the Company as of the date of this Amendment, or persons nominated or elected
by a majority of such persons who were directors as of the date of this
Amendment, do not continue to comprise a majority of the members of such
Board of Directors of the Company;
(iii) At any time during the term of this Agreement the stockholders
of the Company approve a merger or consolidation of the Company with, or a
reorganization transaction involving the Company and, any other entity, other
than a merger, consolidation or reorganization which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation;
or
(iv) At any time during the term of this Agreement the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of more than 50% of its
consolidated assets.
5. Obligations of the Company Upon Termination of Employment. Upon
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termination of Executive's employment with the Company under the circumstances
set forth
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in Section 4(b), the Executive shall be entitled to receive, notwithstanding
such termination, the following payments and to be provided the following
benefits:
(a) Salary and Bonus: Subject to the limitations set forth in Section 7
hereof, the Company shall pay to the Executive that amount which is equal to his
regular base salary, at the rate then in effect, for a period of one (1) year,
plus a bonus in an amount which shall be equal to the largest cash bonus
actually received by Executive during his term of employment with the Company;
provided, however, that if Executive shall have entered into an Employment
Agreement with the Company which is in effect at the time of Executive's
termination, then and in that event the Company and Executive hereby agree that
upon Executive's termination Executive shall be entitled to receive either (i)
the salary and bonus termination payments under this Section 5(a), or (ii) the
salary and bonus terminations payments provided for in such Employment
Agreement, whichever salary and bonus termination payment is the greater; but
under no conditions shall Executive be entitled to receive upon termination both
the salary and bonus termination payments under this Severance Agreement and the
salary and bonus termination payments under any such Employment Agreement.
(b) Method of Payment: The payments due to Executive under Section 5(a)
of this Agreement shall be made as follows:
(i) The Company shall pay to the Executive his regular base salary in
installments consistent with the Company's payroll practices then in effect,
or in a
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single lump sum payment, whichever method is selected by Executive, in his
sole discretion;
(ii) The Company shall pay to Executive the bonus payments in a single
lump sum; and
(iii) Any lump sum payments due to Executive shall be paid to
Executive on the Effective Date of his termination of employment.
(c) Other Benefits: The Company shall continue in force for Executive for
a period of two (2) years after Executive's termination the life insurance,
medical, health-and-accident and disability benefit plans or programs then in
effect on the date of Executive's termination from the Company; provided,
however, that such other benefits as are set forth in this Section 5(c) shall
not be required to be available to Executive if subsequent employment by
Executive with another employer offers to Executive similar plans or programs in
which the benefits equal or exceed the benefits which Executive could receive
under the Company's plans or programs as provided herein.
6. No Duty to Mitigate. The Executive shall not be required to mitigate the
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amount of any payment required hereunder by seeking other employment or
otherwise, nor shall the amount paid hereunder be reduced or offset by any
compensation earned or received by the Executive as a result of employment with
another employer, self-employment or any amount received from any other plan,
program, policy or arrangement of the Company.
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7. Nonapplicability of Excise Tax. The parties intend that this Agreement
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shall govern the rights an obligations of the parties with respect to severance
payments payable upon a termination of Executive's employment with the Company,
and that the excise tax as now provided in Section 280G of the Internal Revenue
Code shall not be applicable to payments under this Agreement. Accordingly, the
parties agree that the aggregate amount which shall be paid to Executive under
this Agreement shall be $1.00 less than that amount which would make such
payment to Executive an "excess parachute payment" under the provisions of
Sections 280G of the Internal Revenue Code, and to which an excise tax would be
applicable.
8. Settlement of Disputes.
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(a) It is specifically agreed that any controversy or dispute between the
parties to this Agreement involving the construction, interpretation,
application, performance or breach of the terms, covenants or conditions of this
Agreement or in any way arising under this Agreement shall, on demand of one of
the parties by written notice hereto served on the other in the manner
prescribed in Section 9(a) hereof, be determined pursuant to the general
reference procedures prescribed by California Code of Civil Procedure Sections
638(1), et seq., as they may be amended from time to time, by a retired or
former judge of the Superior Court for the County of Orange, State of
California. The parties intend this general reference agreement to be
specifically enforceable in accordance with said Section 638(1).
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(b) The reference may be commenced by any party hereto by the filing in
the Superior Court of the State of California for the County of Orange of a
petition or a motion for a general reference proceeding.
(c) The petition or motion may designate as a sole referee a retired judge
working with JAMS who is acceptable to that party. If the parties to the
reference proceeding are unable to mutually agree upon a referee, the Presiding
Judge or any judge of the Orange County Superior Court to whom the matter is
assigned shall appoint a retired or former Orange County Superior Court Judge
from those listed with JAMS as available to act as a referee.
(d) The petition and any opposition or response thereto shall recite in a
clear and meaningful manner the factual basis of the controversy between the
parties and identify the issues to be submitted to the referee for decision.
(e) The parties acknowledge that this Agreement is specifically
enforceable and that the decision by the referee is tantamount to a judgment by
a trial court (CCP (S) 644) and is subject to review in accordance with CCP (S)
645, and that any judgment rendered in the trial court is appealable in the same
manner as any other trial court judgment.
(f) The parties may agree on limited discovery. However, in the absence
of an agreement, each party may: (i) take up to three depositions not totaling
more than six hours cumulatively; (ii) propound one set of interrogatories, not
to exceed 20 single questions; (iii) serve not more than 10 requests for
admissions; and (iv) propound not to exceed 15
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requests to produce documents, all as may be "reasonable," as measured by the
circumstances and amount in dispute between the parties. Any disagreements
between the parties regarding discovery matters shall be resolved by the
referee.
(g) The hearing shall be held within 60 days after the referee is
selected. The referee shall issue a written memorandum of decision setting
forth his findings of fact and conclusions of law.
9. Miscellaneous.
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(a) Notices: All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by certified mail, return
receipt requested, first-class postage prepaid, to the parties to this Agreement
at the following addresses:
If to the Company: The Centris Group, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
If to Executive: Xxxxx X. Xxxxxx
000 Xxxxx Xxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
or to such other address as either party to this Agreement shall have last
designated by notice to the other party. All such notices and communications
shall be deemed to have been received on the earlier of the date of receipt or
the third business day after the date of mailing thereof.
(b) Binding Effect; Benefits: This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended or shall be construed to give any
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person, other than the parties to this Agreement or their respective successors
or assigns, any legal or equitable right, remedy or claim under or in respect of
any agreement or any provision contained herein.
(c) Waiver: Either party hereto may by written notice to the other (i)
extend the time for the performance of any of the obligations or other actions
of the other under this Agreement; (ii) waive compliance with any of the
conditions or covenants of the other contained in this Agreement; and (iii)
waive or modify performance of any of the obligations of the other under this
Agreement. Except as provided in the preceding sentence, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained herein. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any preceding or succeeding breach, and no failure by either party to exercise
any right or privilege hereunder shall be deemed a waiver of such party's rights
or privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same any subsequent time or times hereunder.
(d) Amendment: This Agreement may be terminated, amended, modified or
supplemented only by a written instrument executed by the Executive and the
Company.
(e) Nonassignability: Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by either the Company or the Executive without the prior written
consent of the other party.
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(f) Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of California, regardless of the law that
might be applied under principles of conflict of laws.
(g) Section and Other Headings: The section and other headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
(h) Withholding of Taxes: The Company may withhold from amounts required
to be paid to the Executive hereunder any applicable federal, state, local and
other taxes with respect thereto; provided, however, that the Company shall
promptly pay over the amounts so withheld to the appropriate taxing bodies and
provide to the Executive appropriate statements on forms proscribed for such
purposes on the amounts so withheld.
(i) Severability: If, for any reason, any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall, to the full
extent consistent with law, continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect. If this
Agreement is held invalid or cannot be enforced, then to the full extent
permitted by law, any prior agreement
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on the subject matter of this Agreement between the Company (or any predecessor
thereof) and the Executive shall be deemed reinstated as if this Agreement had
not been executed.
(j) Counterparts: This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
In Witness Whereof, the Company has caused this Agreement to be executed by a
duly authorized officer, and the Executive has signed this Agreement, all as of
the date first above written.
Company: THE CENTRIS GROUP, INC.
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By /S/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Executive:
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/S/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
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