EXHIBIT 10.14(v)
Severance Agreement
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This Agreement is made and entered into as of this 24th day of May,
1994, by and between US Facilities Corporation, 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
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Company 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, 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; provided, however, that such duties shall not be inconsistent
with Executive's present duties unless he consents thereto in writing.
2. Other Severance Arrangements. Except to the extent specifically
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set forth 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
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first 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
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following circumstances, no 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;
(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 forth in (i) and (ii) below, the Company shall make the
payments and provide the benefits as set forth in Section 5:
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(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.
(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":
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(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;
(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
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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.
(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) 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
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the regulations of the Securities and Exchange Commission (the "SEC")
thereunder, each as in effect on the Effective Date of this Agreement
and (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) of outstanding securities of the
Company representing 10% or more of the combined voting power of the
Company's then outstanding securities;
(ii) At any time during the term of this Agreement the
composition of the Board of Directors of the Company is changed such
that persons who were directors of the Company as of the Effective
Date, or persons nominated or elected by a majority of such persons, 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
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of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(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; or
(v) At any time during the term of this Agreement any other
event, transaction or series of events or transactions occurs as a
result of which any person may be presumed to have "acquired control"
of the Company (as such term is defined in Section 1215 of the
Insurance Code of the State of California as in effect on the Effective
Date).
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 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.
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(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 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
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mitigate the amount of any payment required hereunder by seeking other
employment or otherwise, nor shall the amount paid hereunder be reduced or
offset by any compensa-
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tion 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.
7. Nonapplicability of Excise Tax. The parties intend that this
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Agreement 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 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 requests to produce
documents, all as may be "reasonable," as measured by the circumstances and
amount in dispute between the
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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: US Facilities Corporation
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
If to Executive: Xxxxx X. Xxxxxx
00 Xxxxxxx Xxxxxx
Xxxxx 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.
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(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 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.
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(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.
(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
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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 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 and its seal affixed hereunto by its officers thereunto duly
authorized, and the Executive has signed this Agreement, all as of the date
first above written.
Company: US Facilities Corporation
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By /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Chairman
of the Board, 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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