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EXHIBIT 10.16t
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 XXXXXXX X.
XXXXXX, having an address at 00 Xxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxx Xxxxxx
00000 (the "Executive"), to Termination Agreement dated as of August 1, 1995
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 hereby
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: Cairman and Chief
Executive Officer
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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