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EXHIBIT 10.16w
AMENDMENT NO. 1 TO TERMINATION AGREEMENT
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AMENDMENT NO. 1, dated as of December 31, 1998 among SELECTIVE
INSURANCE GROUP, INC., a New Jersey corporation ("Selective"), having an
office at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, SELECTIVE
INSURANCE COMPANY OF AMERICA, a New Jersey corporation ("XXXX"), having an
office at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, and XXXXX X.
XXXXXXX, XX., having an address at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 (the "Executive"), to Termination Agreement dated as of May 2, 1997
among XXXX and the Executive (the "Termination Agreement").
WHEREAS, XXXX and the Executive have executed and delivered the
Termination Agreement, and Selective has guaranteed all of the obligations
of XXXX under the Termination Agreement; and
WHEREAS, the parties hereto desire to amend the Termination Agreement
as provided herein.
THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Subsection 5(f) of the Termination Agreement is hereby deleted
in its entirety, and replaced with a new subsection 5(f) to read in its
entirety as follows:
(f) In the event that any payments or benefits which
the Executive is entitled to receive from the Company
under this Agreement, together with any other payments
or benefits which the Executive is entitled to receive
from the Company (including, without limitation, any
amounts payable under any employment contract with the
Company or any stock option, stock bonus, incentive
compensation or other employee benefit plan of the
Company), in the aggregate would constitute an "excess
parachute payment" (as defined in Section 280G(b)
of the Code), the Company shall pay to the Executive
an amount constituting the greater to the Executive on
a net after-tax basis (as hereinafter provided) of
(i) the amount of payments and benefits which the
Executive is
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entitled to receive from the Company under this
Agreement, together with any other payments and
benefits which the Executive is entitled to receive
from the Company, reduced, in such order of priority
and amounts as the Executive shall elect, to the
largest amount as will result in no portion of the
aggregate of such payments being subject to the excise
tax imposed by Section 4999 of the Code, or any
successor or substitute provision of the Code(the
"Section 4999 Tax"), or (ii) the amount of payments
and benefits to which the Executive is entitled to
receive from the Company under this Agreement,
together with such other payments and benefits
which the Executive is entitled to receive from the
Company, plus an amount in cash equal to (x) the
amount of such "excess parachute payment" multiplied
by (y) twenty percent (20%). The aggregate amounts
described in clause (i) and in clause (ii) of this
subsection 5(f) shall be calculated on a net after
tax basis giving effect to the obligation of the
Executive to pay any applicable taxes on such
aggregate amounts (including, without limitation,
all federal, state and local income taxes at the
maximum applicable rates, any Section 4999 Tax and
any other tax payable thereon at the maximum
applicable rate).
2. Subsection 5(g) of the Termination Agreement is here-by deleted
in its entirety and replaced with a new subsection 5(g) to read in its
entirety as follows:
(g) In the event that the Executive shall receive
from the Company the amount specified in clause (i)
of subsection 5(f) and the Internal Revenue Service
(the "IRS") or a court of competent jurisdiction
shall determine that any portion of the payments and
benefits paid or payable to the Executive pursuant
to this Agreement shall constitute an "excess
parachute payment" subject to a Section 4999 tax,
the Company shall pay to the
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Executive in cash such additional amount as is
necessary so that the aggregate amounts received
by the Executive under this Agreement, after giving
effect to the obligation of the Executive to pay any
applicable taxes on such aggregate amounts (including,
without limitation all federal, state and local income
taxes, any Section 4999 Tax and any other taxes payable
thereon), shall not be less than the net after-tax
amount which the Executive would have been entitled
to receive under clause (i) of subsection 5(f) had
such Section 4999 Tax not been imposed. The Company
shall pay such additional amount to the Executive
within thirty (30) days after the Executive gives
written notice to the Company that such determination
has been made by the IRS or a court of competent
jurisdiction.
3. The following new Section 5(h) is hereby added to the
Agreement:
(h) Any dispute or controversy between the Executive
and the Company regarding payments under this
Section 5 of this Agreement shall be conclusively
settled by an independent accounting firm acceptable
to each of the parties hereto, or, if no firm is
acceptable to both parties hereto, each of the
Executive and the Company shall select an
accounting firm acceptable to it, and such
accounting firms shall together designate an
independent accounting firm to settle such
dispute or controversy, and such settlement
shall be binding upon both parties, provided,
however, that any accounting firm designated to
settle any dispute or controversy hereunder shall
not have been previously retained by either party
for a period of at least two (2) years subsequent
to the date of this settlement of such dispute or
controversy. The
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Company or the Escrow Agent, as the case may be, may
withhold from any benefits payable under this
Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or
governmental regulation or ruling.
4. The capitalized defined terms used in this Amendment shall
have the same meanings as are ascribed to them in the Termination Agreement
unless otherwise defined herein.
5. Except as amended herein, the Termination Agreement shall
continue in full force and effect on and after the date hereof.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
Executive and on behalf of Selective and XXXX by their duly authorized
officers, as of the date and year first above written.
SELECTIVE INSURANCE GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief
Executive Officer
SELECTIVE INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief
Executive Officer
/s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxxx X. Xxxxxxx, Xx.
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