EXHIBIT 10.5
AMENDMENT TO TERMINATION AGREEMENT
This Amendment to Termination Agreement ("Amendment"), entered into as of
this 14th day of May, 1997, by and between Western National Corporation, a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Executive").
WITNESSETH:
WHEREAS, the Termination Agreement between the Company and Executive,
dated as of February 10, 1997, provides for the employment of Executive by the
Company (the "Agreement"); and
WHEREAS, the Company has from time to time made awards to Executive under
the 1993 Stock and Incentive Plan or otherwise entered into agreements with
Executive; and
WHEREAS, the Company and Executive hereby wish mutually to amend the
Agreement, such awards and any other agreements between the Company and
Executive;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereby agree as
follows:
1. The Agreement (and any award or other agreement between the Company and
Executive) is hereby amended by the inclusion of the following provision,
which shall supersede and replace any provision relating to the subject matter
hereof:
Certain Additional Payments by the Company. Notwithstanding anything to the
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contrary in this Agreement, any award or other agreement, in the event that
any payment or distribution by the Company to or for the benefit of Executive,
whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise (a "Payment"), would be subject to the excise
tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest
or penalties, are hereinafter collectively referred to as the "Excise Tax"),
the Company shall pay to Executive an additional payment (a "Gross-up
Payment") in an amount such that after payment by Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax imposed on any Gross-up Payment, Executive retains an
amount of the Gross-up Payment equal to the Excise Tax imposed upon the
Payments. The Company and Executive shall make an initial determination as to
whether a Gross-up Payment is required and the amount of any such Gross-up
Payment. Executive shall notify the Company immediately in writing of any
claim by the Internal Revenue Service which, if successful, would require the
Company to make a Gross-up Payment (or a Gross-up Payment in excess of that,
if any, initially determined by the Company and Executive) within ten days of
the receipt of such claim. The Company shall notify Executive in writing at
least ten days prior to the due date of any response required with respect to
such claim if it plans to contest the claim. If the Company decides to
contest such claim, Executive shall cooperate fully with the Company in such
action; provided, however, the Company shall bear and pay directly or
indirectly all costs and expenses (including additional interest and
penalties) incurred in connection with such action and shall indemnify and
hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax
or other tax, including interest and penalties with respect thereto, imposed
as a result of the Company's action. If, as a result of the Company's action
with respect to a claim, Executive receives a refund of any amount paid by the
Company with respect to such claim, Executive shall promptly pay such refund
to the Company. If the Company fails to timely notify Executive whether it
will contest such claim or the Company determines not to contest such claim,
then the Company shall immediately pay to Executive the portion of such claim,
if any, which it has not previously paid to Executive.
2. Subject to the modification provided for in paragraph 1 hereof, the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
WESTERN NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Executive
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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