EXHIBIT 10.5(ii)
AMENDMENT NO. 3
TO SEVERANCE AGREEMENT
BETWEEN
THE CENTRIS GROUP, INC.
(FORMERLY US FACILITIES CORPORATION)
AND
XXXXX X. XXXXXXX
Whereas, The Centris Group, Inc., a Delaware corporation (the "Company"), and
Xxxxx X. Xxxxxxx (the "Executive") entered into a Severance Agreement dated May
24, 1994, and to an Amendment No. 1 thereto dated December 4, 1996, and to an
Amendment No. 2 thereto dated August 29, 1997 (collectively referred to herein
as the "Agreement"), which relates to the termination of Executive's employment
with the Company under certain circumstances; and
Whereas, the Company and the Executive desire to amend Section 4(e) to
clarify the definition of events which constitute a "Change in Control" for
purposes of this Agreement;
Now, Therefore, in consideration of the Company's payment to Executive of
$1.00 and other good and valuable consideration, receipt of which is hereby
acknowledged, the Company and the Executive hereby agree to enter into this
Amendment to the Agreement as follows:
1. Section 4(e) of the Agreement shall be completely replaced by a new
Section 4(e), which shall read in full as follows:
(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
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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 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. Under all circumstances, 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;
(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;
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(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.
2. Apart from this Amendment, the terms of the Agreement as entered into on
May 24, 1994 and as amended by Amendment No. 1 on December 4, 1996 and by
Amendment No. 2 on August 29, 1997 shall otherwise in all respects remain as
originally written to the extent that such terms do not conflict with or are
inconsistent with this Amendment.
In Witness Whereof, this Amendment No. 3 has been executed by a duly
authorized officer of the Company and by the Executive as of the 30th day of
December, 1998.
Company: The Centris Group, Inc.
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By ______________________________________
Xxxx X. Xxxxxxx
Senior Vice President, Chief Administrative
Officer, Secretary and General Counsel
Executive:
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_________________________________________
Xxxxx X. Xxxxxxx
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