EXHIBIT 10.5 (vii)
Amendment No. 1
To Severance Agreement
Between
US Facilities Ccorporation
And
Xxxxx X. Xxxxxxx
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Whereas, US Facilities Corporation, a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx (the "Executive") entered into a Severance
Agreement dated May 24, 1994 with respect to the termination of Executive's
employment with the Company (the "Agreement"); 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 and to amend Section 5(a) which defines the
obligations of the Company regarding salary and bonus termination payments to
Executive;
Now, Therefore, in consideration of the Company's agreement to continue
the employment of Executive for a period of a minimum of six (6) months from the
date of this Amendment and the 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 as originally written shall be stricken
and eliminated from the Agreement, and 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 hereof, of any of the
following events if such events are not approved by the Board of Directors
of the Company prior to their occurrence;
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(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) of
outstanding securities of the Company representing 10% or more of the
combined voting power of the Company's then outstanding securities. For
purposes of this subsection (i) of Section 4(e) of the Agreement, a person
becomes, directly or indirectly, the beneficial owner of outstanding
securities of the Company representing 10% or more of the combined voting
power of the Company's outstanding securities when such person, together
with all affiliates and associates of such person, acquires beneficial
ownership of, in the aggregate, a number of voting shares of the Company
equal to 1% or more of the voting shares then outstanding, and thereupon
or thereafter beneficially owns (as defined in the aforenoted Rule 13d-3
under the Exchange Act) 10% or more of the voting shares of the Company
then outstanding; 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 plan or 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 plan or tender offer, shall
have acquired beneficial ownership of, in the aggregate, a number of
voting shares of the Company equal to 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 the 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, rights (other than rights), warrants
or options shall not be deemed outstanding. Any determination made by the
directors as to whether any person is or is not a 10% stockholder for
purposes of this subsection shall be conclusive and binding upon the
Company and upon all stockholders;
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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 such that
persons who were directors of the Company as of the Effective Date, or
persons nominated or elected as directors by a majority of such persons
who were directors as of the Effective Date, 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.
2. Section 5(a) of the Agreement as originally written shall be stricken
and eliminated from the Agreement, and shall be completely replaced by a new
Section 5(a), which shall read in full as follows:
(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 three (3) years, plus a bonus in an amount which shall be equal
to one-and-one-half (1 1/2) times 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 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.
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3. This Amendment shall be retroactive and shall be considered and deemed
to have been in effect as of May 24, 1994, the Effective Date of the Agreement,
which is the date when it was entered into by the parties hereto.
4. Apart from this Amendment, the terms of the Agreement as entered into
on May 24, 1994 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. 1 has been executed by a duly
authorized officer of the Company and by the Executive as of the 4th day of
December, 1996.
Company: US Facilities Corporation
By /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President, Secretary
and General Counsel
Executive: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
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