Exhibit 10.4
AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT
This Amendment No. 3 to Employment Agreement ("Amendment No. 3") is made
this 10th day of November, 1998, and effective as of the 21st day of August,
1998, between PennCorp Financial Group, Inc., a Delaware corporation (together
with its successors and permitted assigns under the Employment Agreement, as
defined herein, the "Company"), and Xxxxx X. Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive and the Company are parties to an
Employment Agreement (herein so called), dated as of June 7, 1996, as amended;
WHEREAS, the Executive and the Company have entered into a
letter agreement dated October 16, 1998, pertaining to the Employment Agreement
and Executive's employment with the Company; and
WHEREAS, the Company desires to amend, and the Executive is
willing to amend, the provisions of the Employment Agreement relating to the
duties of the Executive during his employment with the Company;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt of which is mutually acknowledged, the Company and the Executive agree
as follows:
1. Definitions. Capitalized terms used herein
that are not otherwise defined herein shall have the meaning
given such terms in the Employment Agreement.
2. Amendment to Definitions. Clause (m) of
Section 1 of the Employment Agreement shall be amended to
read in its entirety as follows:
(m) "Good Reason" shall mean the occurrence of any of
the following events within the 60-day period preceding the
termination of employment by the Executive:
(1) a reduction in the Executive's Base Salary or any
material failure by the Company to honor its obligations under
Sections 7, 8, 9 or 10
hereof, in any such case, without the Executive's prior
written consent;
(2) a material change in the Executive's duties or
responsibilities with respect to his employment by the Company
under the Agreement without the Executive's prior written
consent;
(3) an actual change by the Board in the Executive's
principal work location by more than 25 miles and more than 25
miles from the Executive's principal place of abode as of the
date hereof without the Executive's prior written consent;
(4) the failure of the Company to obtain the
assumption in writing of its obligation to perform this
Agreement by any successor to all or substantially all of the
assets of the Company within 45 days after a merger,
consolidation, sale or similar transaction; or
(5) a Change in Control.
3. Amendment to Section 3 of the Employment Agreement. Clause
(a) of Section 3 of the Employment Agreement shall be amended to read in its
entirety as follows:
3. Position, Duties and Responsibilities.
(a) Until the end of the Term of Employment, the
Executive shall be employed by the Company and perform senior
level services pertaining to the disposition of subsidiaries,
divisions or other assets of the Company, shall provide
general strategic policy and business advice to the Board and
shall perform such other senior level services as the parties
shall mutually agree. Executive shall report only to the Board
and/or its Chairman, but shall coordinate and cooperate with
the Chief Executive Officer of the Company.
4. Clause (b) of Section 3 of the Employment Agreement is
deleted in its entirety.
5. Section 5 of the Employment Agreement shall be amended to
read in its entirety as follows:
5. Reserved.
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6. Section 13 of the Employment Agreement is amended to add a
new paragraph (d) at the end of Section 13 to read as follows:
Subject to Sections 12 and 13 of the Employment Agreement,
Executive may manage his personal affairs and may establish an
investment fund to be operated by him in the future, provided that such
activities shall not interfere with or impair (i) Executive's
performance of his duties and responsibilities with respect to the
Company, or (ii) the operation of the KB Investment Fund I, L.P.
(formerly known as the Knightsbridge Capital Fund I, L.P.) and the
existing financial commitments of the limited partners to the KB Fund
(including, but not limited to, encouraging the release of such
commitments or attempts by limited partners to obtain a release of such
commitments). Executive shall not actually operate an investment fund
established by him or, without the permission of the Company which
shall not be unreasonably withheld, be associated with an investment
fund that is "funded" and that is not engaged in Fund Competitive
Activity, in either case while employed hereunder. Executive hereby
acknowledges and agrees that nothing herein shall be construed as
waiving the rights of the Company or releasing Executive from his
obligations under paragraph (b) of Section 13 of the Employment
Agreement, as set forth in Amendment No. 2 to the Employment Agreement
dated January 5, 1998.
7. No Waiver by Company. Executive hereby acknowledges and
agrees that the Company has not waived and by execution of this Amendment No. 3
does not waive any rights or claims, if any, that the Company may have against
Executive with respect to Executive's employment with the Company or otherwise
involving the Company or any of its subsidiaries. Without limiting the
generality of the foregoing, the Company hereby expressly reserves any and all
of its rights or claims, if any, against Executive.
8. Limited Waiver by Executive. Company hereby acknowledges
and agrees that Executive has not waived and by execution of this Amendment No.
3 does not waive any rights or claims, if any, that Executive may have against
the Company or otherwise involving the Company or any of its subsidiaries,
except Executive agrees that he does not have and hereby waives any claim to
resign for Good Reason under the Employment Agreement as a result of the events
that transpired on or about August 21, 1998 or as a result of changes documented
by this Amendment No. 3.
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9. No Further Modifications. Except as expressly amended by
this Amendment No. 3 and other prior amendments to the Employment Agreement, the
Employment Agreement shall continue in full force and effect in accordance with
its terms.
10. Governing Law. This Amendment No. 3 shall be governed
by and construed and interpreted in accordance with the laws of New York without
reference to principles of conflict of laws.
11. Headings. The headings of the sections contained in this
Amendment No. 3 are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.
12. Counterparts. This Agreement may be executed in two or
more counterparts.
IN WITNESS WHEREOF, the undersigned have executed
this Amendment No. 3 on the day and year written above.
PENNCORP FINANCIAL GROUP, INC.
By:/s/Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Executive
Vice President, Chief
Administrative Officer and
General Counsel
By:/s/Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Chairman
Compensation Committee
/s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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