EXHIBIT 10.5**CHANGE IN CONTROL AGREEMENT**     THIS AGREEMENT is entered into by and between Xanser Corporation, a Delaware corporation (the“*Company*”), and Howard C. Wadsworth (the “*Executive*”) effective as of August 31, 2006 (the“*Effective Date*”).     WHEREAS, the Company considers it essential to the best interests of its stockholders tofoster the continued employment of key management personnel; and     WHEREAS, the Company recognizes that, as is the case with many publicly-held corporations, thepossibility of a change in control exists and that such possibility, and the uncertainty andquestions which it may raise among management, may result in the departure or distraction ofmanagement personnel to the detriment of the Company and its stockholders; and     WHEREAS, the Company has determined that appropriate steps should be taken to reinforce andencourage the continued attention and dedication of members of the Company’s management, includingthe Executive, to their assigned duties without distraction in the face of potentially disturbingcircumstances arising from the possibility of a change in control;     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,the Company and the Executive hereby agree as follows:     1. Definitions and Interpretation Rules.     1.1 Defined Terms. For purposes of this Agreement, the following terms shall have themeanings indicated below:     ***“****Affiliate****”***means any entity which is a member of (i) the same controlled group ofcorporations within the meaning of section 414(b) of the Code with the Company, (ii) a trade orbusiness (whether or not incorporated) which is under common control (within the meaning of section414(c) of the Code) with the Company or (iii) an affiliated service group (within the meaning ofsection 414(m) of the Code) with the Company.     ***“****Assets****”***means assets of any kind owned by the Company, including but not limited tosecurities of the Company’ direct and indirect subsidiaries and Affiliates.     ***“****the Company****”***means Xanser Corporation, a Delaware corporation, and any successor by merger orotherwise.     ***“****Base Compensation****”***means the Executive’s base salary or wages (as defined in section 3401(a)of the Code for purposes of federal income tax withholding) from the Company, modified by *including*any portion thereof that such Executive could have received in cash in lieu of any electivedeferrals made by the Executive (other than deferrals of bonuses) or pursuant to a qualified cashor deferred arrangement described in section 401(k) of the Code and any elective contributionsunder a cafeteria plan described in section 125 of the Code, and modified further by *excluding*anybonus, incentive compensation (including but not limited to equity-based compensation),commissions, expense reimbursements or other expense allowances, fringe benefits
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EXHIBIT 10.5(cash and noncash), moving expenses, deferred compensation (other than elective deferrals by theExecutive under a qualified cash or deferred arrangement described in section 401(k) of the Codethat are expressly included in “*Base Compensation*” under the foregoing provisions of thisdefinition), welfare benefits as defined in ERISA, overtime pay, special performance compensationamounts and severance compensation.     ***“****Beneficial Owner****”***or “*Beneficial Ownership*” shall have the meaning ascribed to those terms inRule 13d-3 of the General Rules and Regulations under the Exchange Act.     ***“****Board****”***means the Board of Directors of the Company or other governing body of the Company orits direct or indirect parent.     ***“****Cause****”***means (i) the willful and continued failure by the Executive to substantially performthe Executive’s duties with the Company (other than any such failure resulting from the Executive’sincapacity due to physical or mental illness) after a written demand for substantial performance isdelivered to the Executive by the Board (or by a delegate appointed by the Board), which demandspecifically identifies the manner in which the Board believes that the Executive has notsubstantially performed the Executive’s duties, (ii) the willful engaging by the Executive inconduct which is demonstrably and materially injurious to the Company or any of its Affiliates,monetarily or otherwise, (iii) the conviction of the Executive for a felony, (iv) the entering bythe Executive of a plea of guilty or nolo contendre to a felony charge or crime involving moralturpitude, or (v) the material breach by the Executive of any code of conduct established by theCompany. For purposes of Sections (i) and (ii) of this definition, (A) no act, or failure to act,on the Executive’s part shall be deemed “willful” if done, or omitted to be done, by the Executivein good faith and with reasonable belief that the act, or failure to act, was in the best interestof the Company and (B) in the event of a dispute concerning the application of this provision, noclaim by the Company that Cause exists shall be given effect unless the Company establishes to theBoard by clear and convincing evidence that Cause exists.     ***“****Change in Control****”***means the occurrence of any of the following events:     (a) the individuals who are Incumbent Directors cease for any reason to constitute a majorityof the members of the Board;     (b) the consummation of a Merger of the Company or an Affiliate of the Company with anotherEntity, unless the individuals and Entities who were the Beneficial Owners of the Voting Securitiesof the Company outstanding immediately prior to such Merger own, directly or indirectly, at least50 percent of the combined voting power of the Voting Securities of any of the Company, thesurviving Entity or the parent of the surviving Entity outstanding immediately after such Merger;     (c) any Person, other than a Specified Owner, becomes a Beneficial Owner, directly orindirectly, of securities of the Company representing 30 percent or more of the combined votingpower of the Company’s then outstanding Voting Securities;     (d) a sale, transfer, lease or other disposition of all or substantially all of the Company’sAssets is consummated (an “*Asset Sale*”), *unless*:
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EXHIBIT 10.5     (1) the individuals and Entities who were the Beneficial Owners of the VotingSecurities of the Company immediately prior to such Asset Sale own, directly orindirectly, 50 percent or more of the combined voting power of the Voting Securitiesof the Entity that acquires such Assets in such Asset Sale or its parent immediatelyafter such Asset Sale in substantially the same proportions as their ownership ofthe Company’s Voting Securities immediately prior to such Asset Sale; or     (2) the individuals who comprise the Board immediately prior to such Asset Saleconstitute a majority of the board of directors or other governing body of eitherthe Entity that acquired such Assets in such Asset Sale or its parent (or a majorityplus one member where such board or other governing body is comprised of an oddnumber of directors); or     (e) The stockholders of the Company approve a plan of complete liquidation or dissolution ofthe Company.     ***“****Code****”***means the Internal Revenue Code of 1986, as amended, or any successor act.     ***“****Committee****”***means, prior to a Change in Control or a Potential Change in Control, theCompensation Committee of the Board. After a Change in Control or a Potential Change in Control,“*Committee*” means (i) the individuals (not fewer than three (3) in number) who, on the date sixmonths prior to the Change in Control constitute the Compensation Committee of the Board, plus,(ii) in the event that fewer than three (3) individuals are available from the group specified inclause (i) above for any reason, such individuals as may be appointed by the individual orindividuals so available (including for this purpose any individual or individuals previously soappointed under this clause (ii)); *provided*, *however*, that the maximum number of individualsconstituting the Committee after a Change in Control or Potential Change in Control shall notexceed five (5).     ***“****Company****”***means the Company. In the event that the Executive’s employer is a subsidiary ofthe Company, the term “Company” shall include the Executive’s employer where appropriate and theCompany will cause the Executive’s employer to take any actions necessary to satisfy theobligations of the Company under this Agreement.     ***“****Disability****”***means the Executive’s incapacity due to physical or mental illness that hascaused the Executive to be absent from full-time performance of his duties with the Company for aperiod of six (6) consecutive months.     ***“****Effective Date****”***means the date identified in the introduction of this Agreement.     ***“****Employee****”***means an individual who is employed in the services of the Company on the Company’sactive payroll.     ***“****Employment Termination Date****”***means the date as of which the Executive incurs a Termination ofEmployment determined in accordance with the provisions of Section 5.2.
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EXHIBIT 10.5     ***“****Entity****”***means any corporation, partnership, association, joint-stock company, limitedliability company, trust, unincorporated organization or other business entity.     ***“****ERISA****”***means the Employee Retirement Income Security Act of 1974, as amended, or anysuccessor act.     ***“****Exchange Act****”***means the Securities Exchange Act of 1934, as amended, or any successor act.     ***“****Excise Tax****”***means the excise tax imposed by section 4999 of the Code or any similar taxpayable under any United States federal, state, or local statute.     ***“****Executive****”***means the Employee identified in the introduction of this Agreement.     ***“****Expiration Date****”***shall have the meaning specified in Section 2.     ***“****Good Reason****”***for termination by the Executive of his employment means the occurrence (withoutthe Executive’s express written consent) after any Change in Control, or prior to a Change inControl under the circumstances described in clauses (b) and (c) of the second paragraph of thedefinition of Termination of Employment (treating all references to “*Change in Control*” inparagraphs (a) through (f) below as references to a “*Potential Change in Control*”), of any one ofthe following acts by the Company, or failures by the Company to act, unless, in the case of anyact or failure to act described in paragraph (a), (e), (f) or (g) below, such act or failure to actis corrected prior to the effective date of the Executive’s termination for Good Reason:     (a) the assignment to the Executive of any duties or responsibilities which are substantiallydiminished as compared to the Executive’s duties and responsibilities immediately prior to a Changein Control or a material change in the Executive’s reporting responsibilities, titles or offices asan Employee and as in effect immediately prior to the Change in Control;     (b) a reduction by the Company in the Executive’s annual Base Compensation as in effect on thedate hereof or as the same may be increased from time to time;     (c) the relocation of the Executive’s principal place of employment to a location outside of a50-mile radius from the Executive’s principal place of employment immediately prior to the Changein Control or the Company’s requiring the Executive to be based anywhere other than such principalplace of employment (or permitted relocation thereof) except for required travel on the Company’sbusiness to an extent substantially consistent with the Executive’s business travel obligationsimmediately prior to a Change in Control;     (d) the failure by the Company to pay to the Executive any portion of the Executive’s currentcompensation or to pay to the Executive any portion of an installment of deferred compensationunder any deferred compensation program of the Company, within seven (7) days of the date suchcompensation is due;     (e) the failure by the Company to continue in effect any compensation plan in which theExecutive participates immediately prior to the Change in Control which is material to theExecutive’s total compensation, unless an equitable arrangement (embodied in an ongoing
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EXHIBIT 10.5substitute or alternative plan) has been made with respect to such plan, or the failure by theCompany to continue the Executive’s participation therein (or in such substitute or alternativeplan) on a basis not materially less favorable, both in terms of the amount or timing of payment ofbenefits provided and the level of the Executive’s participation relative to other the Companyexecutives, as existed immediately prior to the Change in Control;     (f) the failure by the Company to continue to provide the Executive with benefitssubstantially similar to those enjoyed by the Executive under any of the Company’s pension,savings, life insurance, medical, health and accident, or disability plans in which the Executivewas participating immediately prior to the Change in Control, the taking of any other action by theCompany which would directly or indirectly materially reduce any of such benefits or deprive theExecutive of any material fringe benefit or Perquisite enjoyed by the Executive at the time of theChange in Control, or the failure by the Company to provide the Executive with the number of paidvacation days to which the Executive is entitled on the basis of years of service with the Companyin accordance with the Company’s normal vacation policy in effect immediately prior to the time ofthe Change in Control; or     (g) any purported termination of the Executive’s employment which is not effected pursuant toa notice of termination satisfying the requirements of Section 5.1.     The Executive shall have the right to terminate his employment for Good Reason even if hebecomes incapacitated due to physical or mental illness. The Executive’s continued employmentshall not constitute consent to, or a waiver of any rights with respect to, any act or failure toact constituting Good Reason hereunder.     For purposes of any determination regarding the existence of Good Reason, any claim by theExecutive that Good Reason exists shall be presumed to be correct unless the Company establishes tothe Committee by clear and convincing evidence that Good Reason does not exist. The Committee’sdetermination regarding the existence of Good Reason shall be conclusive and binding upon allparties unless the Committee’s determination is arbitrary and capricious.     ***“****Gross-Up Payment****”***means the additional amount paid to the Executive pursuant to Section 3.3.     ***“****Highest Base Compensation****”***means the Executive’s annualized Base Compensation in effectimmediately prior to (a) a Change in Control, (b) the first event or circumstance constituting GoodReason, or (c) the Executive’s Termination of Employment, whichever is greatest.     *“Incumbent Director****”***means -     (a) a member of the Board on the Effective Date; or     (b) an individual-     (1) who becomes a member of the Board after the Effective Date;     (2) whose appointment or election by the Board or nomination for election bythe Company’ stockholders is approved or recommended by a vote of
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EXHIBIT 10.5at least two-thirds of the then serving *Incumbent Directors*(as defined herein); and     (3) whose initial assumption of service on the Board is not in connection withan actual or threatened election contest.     ***“****Merger****”***means a merger, consolidation or similar transaction.     ***“****Pension Plan****”***means the Company’s 401(k) plan, as amended from time to time.     ***“****Perquisites****”***means benefits such as any supplemental life insurance; financial consulting;and office equipment for use in the home (e.g., cellular telephones, personal digital assistance,home computers and office accessories similar to the office accessories available to the Executivein his employment office and monthly Internet connection fees) that may be provided by the Companyfrom time to time.     ***“****Person****”***shall have the meaning ascribed to the term in Section 3(a)(9) of the Exchange Actand used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d)thereof, except that the term shall not include (a) the Company or any of its Affiliates, (b) atrustee or other fiduciary holding Company securities under an employee benefit plan of the Companyor any of its Affiliates, (c) an underwriter temporarily holding securities pursuant to an offeringof those securities or (d) a corporation owned, directly or indirectly, by the stockholders of theCompany in substantially the same proportions as their ownership of stock of the Company.     *“Potential Change in Control****”***shall be deemed to have occurred if the event set forth in anyone of the following paragraphs shall have occurred:     (a) the Company enters into an agreement, the consummation of which would result in theoccurrence of a Change in Control;     (b) the Company or any Person publicly announces an intention to take or to consider takingactions which, if consummated, would constitute a Change in Control;     (c) any Person becomes the Beneficial Owner, directly or indirectly, of securities of theCompany representing 15 percent or more of either the then outstanding shares of common stock ofthe Company or the combined voting power of the Company’s then outstanding securities (notincluding in the securities beneficially owned by such Person any securities acquired directly fromthe Company or its Affiliates); or     (d) the Board adopts a resolution to the effect that, for purposes of this Agreement, aPotential Change in Control has occurred.     ***“****Renewal Date****”***shall have the meaning specified in Section 2.     ***“****Specified Owner****”***means any of the following:     (a) the Company;
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EXHIBIT 10.5     (b) an Affiliate of the Company;     (c) an employee benefit plan (or related trust) sponsored or maintained by the Company or anyAffiliate of the Company;     (d) a Person that becomes a Beneficial Owner of the Company’ outstanding Voting Securitiesrepresenting 30 percent or more of the combined voting power of the Company’ then outstandingVoting Securities as a result of the acquisition of securities directly from the Company and/or itsAffiliates; or     (e) a Person that becomes a Beneficial Owner of the Company’ outstanding Voting Securitiesrepresenting 30 percent or more of the combined voting power of the Company’s then outstandingVoting Securities as a result of a Merger if the individuals and Entities who were the BeneficialOwners of the Voting Securities of the Company outstanding immediately prior to such Merger own,directly or indirectly, at least 50 percent of the combined voting power of the Voting Securitiesof any of the Company, the surviving Entity or the parent of the surviving Entity outstandingimmediately after such Merger in substantially the same proportions as their ownership of theVoting Securities of the Company outstanding immediately prior to such Merger.     ***“****Termination of Employment****”***means the termination of the Executive’s employment relationshipwith the Company (a) by the Company without Cause after a Change in Control occurs, or (b) by theExecutive for Good Reason after a Change in Control occurs, or (c) resignation by the Executiveconcurrent with a Change in Control.     For purposes of this definition, the Executive’s employment shall be deemed to have beenterminated after a Change in Control, if (a) the Executive’s employment is terminated by theCompany without Cause prior to a Change in Control (whether or not a Change in Control ever occurs)and such termination was at the request or direction of a Person who has entered into an agreementwith the Company, the consummation of which would constitute a Change in Control; (b) the Executiveterminates his employment for Good Reason prior to a Change in Control (whether or not a Change inControl ever occurs) and the circumstance or event which constitutes Good Reason occurs at therequest or direction of a Person who has entered into an agreement with the Company, theconsummation of which would constitute a Change in Control; or (c) the Executive’s employment isterminated by the Company without Cause or by the Executive for Good Reason and such termination orthe circumstance or event which constitutes Good Reason is otherwise in connection with a Change inControl. For purposes of any determination regarding the applicability of the immediatelypreceding sentence, any position taken by the Executive shall be presumed to be correct unless theCompany establishes to the Committee by clear and convincing evidence that such position is notcorrect.     “*Termination of Employment*” does not include (a) a termination of employment due to theExecutive’s death or Disability, or (b) a termination of employment by the Company with Cause.     ***“****Voting Securities****”***means the outstanding securities entitled to vote generally in theelection of directors or other governing body.
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EXHIBIT 10.5     1.2 Number and Gender. As used in this Agreement, unless the context otherwiseexpressly requires to the contrary, references to the singular include the plural, and vice versa;references to the masculine include the feminine and neuter; references to “including” mean“including (without limitation)”; and references to Sections and clauses mean the sections andclauses of this Agreement.     2. Term of Agreement.     2.1 The “*Term*” of this Agreement shall commence on the Effective Date and end on the earlierof (a) Termination of Employment or (b) the date Executive is no longer an employee of the Companyor (c) six (6) months following the date of a change in control (such last day being the“*Expiration Date*”).     3. Compensation.     3.1 Equity Based Compensation. Upon the occurrence of a Change in Control, alloptions to acquire the Company stock, all shares of restricted Company stock, all other equity orphantom equity incentives and any awards the value of which is determined by reference to or basedupon the value of the Company stock, held by the Executive under any plan of the Company shallbecome immediately vested, exercisable and nonforfeitable and all conditions thereof (including,but not limited to, any required holding periods) shall be deemed to have been satisfied, subjectto the terms and conditions of such plans or agreements.     3.2 Benefits Following Termination of Employment. If the Executive incurs aTermination of Employment during the Term of this Agreement, the Company shall provide theExecutive the benefits described below.          (a) Severance Payment Based Upon Base Compensation. the Company will pay theExecutive a cash severance benefit equal to 2.99 times the Executive’s Highest Base Compensation.An Executive’s severance payment under this paragraph (a) will be paid in accordance with theprovisions of Section 4.          (b) Pension Plan. In addition to the retirement benefits to which the Executive isentitled under the Pension Plan, the Company shall pay the Executive a single sum cash payment inan amount equal to the undiscounted value of the employer contributions the Company would have madeto the Pension Plan (including but not limited to matching and base contributions) on behalf of theExecutive had the Executive continued in the employ of the Company for a period of three yearsafter the Employment Termination Date, assuming for this purpose that (i) the Executive’s earnedcompensation per year during that three year period of time is the Executive’s Highest BaseCompensation; and (ii) contribution, deferral, credit and accrual percentages made under thePension Plan, by and on behalf of the Executive during the three year period, are the samepercentages in effect on the date of the Change in Control or the Executive’s EmploymentTermination Date, whichever is more favorable for the Executive. The payment required under thisparagraph (b) will be made in accordance with the provisions of Section 4.          (c) Accident and Health Insurance Benefits. For three years following the Executive’sEmployment Termination Date (the “*Continuation Period*”), the Company shall
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EXHIBIT 10.5arrange to provide the Executive and his dependents accident and health insurance benefits, in eachcase, substantially similar to those provided to the Executive and his dependents immediately priorto the Employment Termination Date or, if more favorable to the Executive, those provided to theExecutive and his dependents immediately prior to the first occurrence of an event or circumstanceconstituting Good Reason, at no greater cost to the Executive than the cost to the Executiveimmediately prior to such date or occurrence. Benefits otherwise receivable by the Executivepursuant to this Section 3.2(c) shall be reduced to the extent benefits of the same type arereceived by or made available to the Executive during the Continuation Period (and any suchbenefits received by or made available to the Executive shall be reported to the Company by theExecutive); *provided*, *however*, that the Company shall reimburse the Executive for the excess, ifany, of the cost of such benefits to the Executive over such cost immediately prior to theEmployment Termination Date or, if more favorable to the Executive, the first occurrence of anevent or circumstance constituting Good Reason.          (d) Perquisites. The Executive shall be entitled to a single sum cash payment whichshall be an amount equal to the sum of (1) the cost of the Executive’s Perquisites in effect priorto his Termination of Employment for the remainder of the calendar year in which the EmploymentTermination Date occurs; plus (2) the cost of the Executive’s Perquisites in effect prior to hisTermination of Employment for an additional three years. The payment required under this paragraph(d) will be made in accordance with the provisions of Section 4.          (e) Retiree Medical. If the Executive would have become entitled to benefits underthe Company’s post-retirement health care insurance plans, as in effect immediately prior to theEmployment Termination Date or, if more favorable to the Executive as in effect immediately priorto the first occurrence of an event or circumstance constituting Good Reason, had the Executive’semployment terminated at any time during the period of thirty-six (36) months after the EmploymentTermination Date, the Company shall provide such post-retirement health care insurance benefits tothe Executive and the Executive’s dependents commencing on the later of (i) the date on which suchcoverage would have first become available and (ii) the date on which the applicable benefitsdescribed in paragraph (c) of this Section 3.2 terminate.     3.3 Gross-Up Payments. The Executive will reasonably cooperate with the Company ingood faith to achieve a mutually acceptable methodology for minimizing the Excise Tax.Should the Executive and the Company fail to agree on a mutually acceptable methodology forminimizing the Excise Tax, the following provisions of this Section 3.3 will apply. If anypayments or benefits received or to be received by the Executive (whether pursuant to the terms ofthis Agreement, or any other plan or agreement with the Company, any Person whose actions result ina Change in Control or any Person affiliated with the Company or such Person) (such payments orbenefits, excluding the Gross-Up Payment, being hereinafter referred to as the “*Total Payments*”)will be subject to the Excise Tax, the Company shall pay the Executive an additional amount (the“*Gross-Up Payment*”) such that the net amount retained by the Executive after the deduction of anyExcise Tax on the Total Payments and any federal, state and local income and employment taxes andExcise Tax upon the Gross-Up Payment shall be equal to the Total Payments. The purpose of thisSection is to place the Executive in the same economic position such Executive would have been inhad no Excise Tax been imposed with respect to the Total Payments.
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EXHIBIT 10.5          (a) For purposes of determining whether any of the Total Payments will be subject to theExcise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as“parachute payments” (within the meaning of section 280G(b)(2) of the Code) unless, in the opinionof tax counsel (the “*Tax Counsel*”) reasonably acceptable to the Executive and selected by theaccounting firm which was, immediately prior to the Change in Control, the Company’s independentauditor (the “*Auditor*”), such payments or benefits (in whole or in part) do not constituteparachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all “excessparachute payments” within the meaning of section 280G(b)(l) of the Code shall be treated assubject to the Excise Tax unless, in the opinion of the Tax Counsel, such excess parachute payments(in whole or in part) represent reasonable compensation for services actually rendered (within themeaning of section 280G(b)(4)(B) of the Code) in excess of the “base amount” (within the meaning ofsection 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise notsubject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment orbenefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3)and (4) of the Code.          (b) For purposes of determining the amount of the Gross-Up Payment, the Executive shall bedeemed to pay federal income tax at the highest marginal rate of federal income taxation in thecalendar year in which the Gross-Up Payment is to be made and state and local income taxes at thehighest marginal rate of taxation in the state and locality of the Executive’s residence on theEmployment Termination Date (or if there is no Employment Termination Date, then the date on whichthe Gross-Up Payment is calculated for purposes of this Section), net of the maximum reduction infederal income taxes which could be obtained from deduction of such state and local taxes.          (c) In the event that the Excise Tax is determined to exceed the amount taken into accounthereunder in calculating the Gross-Up Payment (including by reason of any payment the existence oramount of which cannot be determined at the time of the payment of the Gross-Up Payment), theCompany shall make an additional Gross-Up Payment in respect of such excess (plus any interest,penalties or additions payable by the Executive with respect to such excess) within five (5)business days following the time that the amount of such excess is finally determined. TheExecutive and the Company shall each reasonably cooperate with the other relative to anyadministrative or judicial proceedings concerning the existence or amount of liability for theExcise Tax.     3.4 Legal Fees. the Company shall pay, on a fully grossed up, after tax basis, alllegal fees and expenses incurred by the Executive (i) in disputing in good faith any issue relatingto the Executive’s termination of employment, (ii) in seeking in good faith to obtain or enforceany benefit or right provided under this Agreement in accordance with Section 9.5, or (iii) inconnection with any tax audit or proceeding to the extent attributable to the application ofsection 4999 of the Code to any payment or benefit under this Agreement. Such payments shall bemade within ten (10) business days after delivery of the Executive’s written request for paymentaccompanied with such evidence of fees and expenses incurred as the Company may reasonably require.     4. Time of Benefits Payments. the Company shall pay the Executive any cash benefitsdescribed in paragraphs (a), (b) and (d) of Section 3.2 in a single sum cash payment in
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EXHIBIT 10.5good funds immediately available by wire transfer to the Executive on the Executive’sEmployment Termination Date. If it is subsequently determined that additional monies are due andpayable to the Executive as benefits described in paragraphs (a), (b) and (d) of Section 3.2, theCompany will pay any such unpaid benefits to the Executive, together with interest on the unpaidbenefits from the date the single sum cash payment was made at the annual rate of 120 percent ofthe rate provided in section 1274(b)(2)(B) of the Code, within ten (10) business days ofdiscovering that the additional monies are due and payable. If the benefits paid to the Executiveare subsequently determined to exceed the amount of benefits the Executive should have received,such excess shall constitute a loan by the Company to the Executive, payable within ten (10)business days after demand by the Company, together with interest from the date the single sum cashpayment was made at the annual rate of 120 percent of the rate provided in section 1274(b)(2)(B) ofthe Code, but only to the extent such amount has not been previously paid by the Executive.     5. Termination Procedures And Compensation During Dispute.     5.1 Notice of Termination. After a Change in Control and during the Term of thisAgreement, any purported termination of the Executive’s employment by the Company shall becommunicated by the Company by a written Notice of Termination to the Executive in accordance withSection 9.8. For purposes of this Agreement, a “*Notice of Termination*” shall mean a notice whichshall indicate the specific termination provision in this Agreement relied upon and shall set forthin reasonable detail the facts and circumstances claimed to provide a basis for termination of theExecutive’s employment under the provision so indicated. Further, a Notice of Termination forCause is required to include a copy of a resolution duly adopted by the affirmative vote of notless than three-quarters (3/4) of the entire membership of the Board at a meeting of the Boardwhich was called and held for the purpose of considering such termination (after reasonable noticeto the Executive and an opportunity for the Executive, together with the Executive’s counsel, to beheard before the Board) finding that, in the good faith opinion of the Board, the Executive wasguilty of conduct set forth in clause (i) or (ii) of the definition of Cause herein, and specifyingthe particulars thereof in detail. No purported termination of the Executive’s employment by theCompany after a Change in Control and during the Term of this Agreement shall be effective unlessthe Company complies with the procedures set forth in this Section.     5.2 Employment Termination Date. “*Employment Termination Date*,” with respect to anypurported termination of the Executive’s employment after a Change in Control and during the Termof this Agreement, shall mean (i) if the Executive’s employment is terminated for Disability,thirty (30) days after Notice of Termination is given (provided that the Executive shall not havereturned to the full-time performance of the Executive’s duties during such thirty (30) dayperiod), and (ii) if the Executive’s employment is terminated for any other reason, the datespecified in the Notice of Termination (which, in the case of a termination by the Company, shallnot be less than thirty (30) days (except in the case of a termination for Cause) and, in the caseof a termination by the Executive, shall not be less than fifteen (15) days nor more than sixty(60) days, respectively, from the date such Notice of Termination is given). “*EmploymentTermination Date*,” with respect to the resignation by the Executive concurrent with a Change inControl, shall mean the date of the Change in Control.
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EXHIBIT 10.5     5.3 Dispute Concerning Termination. If within fifteen (15) days after any Notice ofTermination is given, or, if later, prior to the Employment Termination Date (as determined withoutregard to this Section), the party receiving such Notice of Termination notifies the other partythat a dispute exists concerning the termination, the Employment Termination Date shall be extendeduntil the earlier of (i) the date on which the Term of this Agreement ends or (ii) the date onwhich the dispute is finally resolved, either by mutual written agreement of the parties or by afinal judgment, order or decree of an arbitrator or a court of competent jurisdiction (which is notappealable or with respect to which the time for appeal therefrom has expired and no appeal hasbeen perfected); provided, however, that the Employment Termination Date shall be extended by anotice of dispute given by the Executive only if such notice is given in good faith and theExecutive pursues the resolution of such dispute with reasonable diligence.     5.4 Compensation During Dispute. If a purported termination occurs following a Changein Control and during the Term of this Agreement and the Employment Termination Date is extended inaccordance with Section 5.3, the Company shall continue to pay the Executive the full compensationin effect when the notice giving rise to the dispute was given (including, but not limited to,salary) and continue the Executive as a participant in all compensation, benefit and insuranceplans in which the Executive was participating when the notice giving rise to the dispute was givenor those plans in which the Executive was participating immediately prior to the first occurrenceof an event or circumstance giving rise to the Notice of Termination, if more favorable to theExecutive, until the Employment Termination Date, as determined in accordance with Section 5.3.Amounts paid under this Section are in addition to all other amounts due under this Agreement andshall not be offset against or reduce any other amounts due under this Agreement.     6. Withholding. Subject to the provisions of Section 3.3, the Company may withholdfrom any benefits paid under this Agreement all income, employment, and other taxes required to bewithheld under applicable law.     7. Death of the Executive. If the Executive dies after his Employment TerminationDate but before the Executive receives full payment of the benefits to which he is entitled, anyunpaid benefits will be paid to the Executive’s surviving spouse, or if the Executive does not havea surviving spouse, to the Executive’s estate.     8. Amendment. This Agreement may not be amended except pursuant to a writteninstrument that is authorized by the Committee and agreed to in writing and signed by theExecutive.     9. Miscellaneous.     9.1 Agreement Not an Employment Contract. This Agreement is not an employmentcontract between the Company and Executive and gives Executive no right to retain his employment.This Agreement is not intended to interfere with the rights of the Company to terminate theExecutive’s employment at any time with or without notice and with or without cause or to interferewith the Executive’s right to terminate his employment at any time.
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EXHIBIT 10.5     In the event that a third party begins a tender or exchange offer, initiates a proxy contestor takes other steps to effect a Change in Control of the Company, Executive agrees that they willnot voluntarily leave the employ of the Company and will perform the services of their office untilthe third party has abandoned or terminated efforts to effect a Change in Control or until a Changein Control has occurred. In the event such Change in Control is supported and endorsed by theBoard, Executive agrees to assist, for a period of ninety (90) days from the date of Change inControl, in the orderly transition of management of the Company, provided the Company shall pay anyreasonable expenses Executive incurs in connection with such assistance.     If Executive’s employment with the Company should terminate for any reason prior to theoccurrence of the Change in Control events described herein, this agreement shall terminate and theCompany will have no further obligation to Executive hereunder.     9.2 Alienation Prohibited. No benefits hereunder shall be subject to anticipation orassignment by the Executive, to attachment by, interference with, or control of any creditor of theExecutive, or to being taken or reached by any legal or equitable process in satisfaction of anydebt or liability of the Executive prior to its actual receipt by the Executive. Any attemptedconveyance, transfer, assignment, mortgage, pledge, or encumbrance of the benefits hereunder priorto payment thereof shall be void.     9.3 Severability. Each provision of this Agreement may be severed. If any provisionis determined to be invalid or unenforceable, that determination shall not affect the validity orenforceability of any other provision.     9.4 Binding Effect. This Agreement shall be binding upon any successor of theCompany. Further, the Board shall not authorize a Change in Control that is a merger or a saletransaction unless the purchaser or the Company’s successor agrees to take such actions as arenecessary to cause the Executive to be paid or provided all benefits due under the terms of thisAgreement as in effect immediately prior to the Change in Control.     9.5 Settlement of Disputes Concerning Benefits Under this Agreement; Arbitration. Allclaims by Executive for benefits under this Agreement shall be directed to and determined by theCommittee and shall be in writing. Any denial by the Committee of a claim for benefits under thisAgreement shall be delivered to the Executive in writing within thirty (30) days after writtennotice of the claim is provided to the Company in accordance with Section 9.8 and shall set forththe specific reasons for the denial and the specific provisions of this Agreement relied upon. TheCommittee shall afford a reasonable opportunity to the Executive for a review of the decisiondenying a claim and shall further allow the Executive to appeal to the Committee a decision of theCommittee within sixty (60) days after notification by the Committee that the Executive’s claim hasbeen denied. Any further dispute or controversy arising out of or relating to this Agreement,including without limitation, any and all disputes, claims (whether in tort, contract, statutory orotherwise) or disagreements concerning the interpretation or application of the provisions of thisAgreement shall be resolved by arbitration in accordance with the rules of the American ArbitrationAssociation (the “*AAA*”) then in effect. No arbitration proceeding relating to this Agreement maybe initiated by either the Company or the Executive unless the claims review and appeals proceduresspecified in Section 5.3 have been exhausted. Within ten
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EXHIBIT 10.5(10) business days of the initiation of arbitration hereunder, the Company and the Executivewill each separately designate an arbitrator, and within twenty (20) business days of selection,the appointed arbitrators will appoint a neutral arbitrator from the AAA Panel of CommercialArbitrators. The arbitrators shall issue their written decision (including a statement of findingof facts) within thirty (30) days from the date of the close of the arbitration hearing. Thedecision of the arbitrators selected hereunder will be final and binding on both parties. Thisarbitration provision is expressly made pursuant to and shall be governed by the FederalArbitration Act, 9 U.S.C. Sections 1-16 (or replacement or successor statute). Pursuant to Section9 of the Federal Arbitration Act, the Company and the Executive agree that a judgment of the UnitedStates District Court for the District in which the headquarters of the Company is located at thetime of initiation of arbitration hereunder may be entered upon the award made pursuant to thearbitration.     9.6 No Mitigation. The Company agrees that if the Executive’s employment with theCompany terminates during the Term of this Agreement, the Executive is not required to seek otheremployment or to attempt in any way to reduce any amounts payable to the Executive by the Companypursuant to this Agreement. Further, except as expressly provided otherwise herein, the amount ofany payment or benefit provided for in this Agreement (other than Section 3.2(c)) shall not bereduced by any compensation earned by the Executive as the result of employment by anotheremployer, by retirement benefits, by offset against any amount claimed to be owed by the Executiveto the Company, or otherwise.     9.7 Other Amounts Due. Except as expressly provided otherwise herein, the paymentsand benefits provided for in this Agreement are in addition to and not in lieu of amounts andbenefits that are earned by the Executive prior to his Termination of Employment. The Companyshall pay the Executive any compensation earned through the Employment Termination Date but notpreviously paid the Executive. Further the Executive shall be entitled to any other amounts orbenefits due the Executive in accordance with any contract, plan, program or policy of the Companyor any of its Affiliates, other than any severance benefit program or policy. Amounts that theExecutive is entitled to receive under any plan, program, contract or policy of the Company or anyof its Affiliates at or subsequent to the Executive’s Termination of Employment, other than anyseverance benefit program or policy, shall be payable or otherwise provided in accordance with suchplan, program, contract or policy, except as expressly modified herein.     9.8 Notices. For the purpose of this Agreement, notices and all other communicationsprovided for in this Agreement shall be in writing and shall be given in person or by United Statesregistered mail, return receipt requested (with evidence of receipt by the party to whom the noticeis given), postage prepaid, addressed, if to the Executive, to the address listed on the signaturepage of this Agreement and, if to the Company, to 2435 North Central Expressway, Suite 700,Richardson, Texas 75080; Attention: President, or to such other address as either party may havefurnished to the other in writing in accordance herewith. For purposes of this agreement notice toa party shall be effective only upon actual receipt of the notice by the party with writtenevidence of receipt by the party to whom the notice is given.     9.9 Section 409A of the Code. To the extent that any payment or benefit under thisAgreement would be deemed to be deferred compensation subject to the requirements of Section
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EXHIBIT 10.5409A of the Code that does not comply with such requirements, the Company and the Executiveshall amend this Agreement (in a manner that as closely as practicable achieves the original intentof this Agreement) so that such payment or benefit will be made in accordance with suchrequirements. Without limiting the generality of the foregoing, in the event that it is determinedthat any payment pursuant to this Agreement that is to otherwise be made upon or shortly followingtermination of employment cannot be made prior to the six-month anniversary of such termination ofemployment because the Executive is a “specified employee” (as defined in Section 409A(a)(2)(B)(i)of the Code), such payment shall be paid on the first business day following such six-monthanniversary.     9.10 Governing Law. All provisions of this Agreement shall be construed in accordancewith the laws of Texas, except to the extent preempted by federal law and except to the extent thatthe conflicts of laws provisions of the State of Texas would require the application of therelevant law of another jurisdiction, in which event the relevant law of the State of Texas willnonetheless apply, with venue for litigation being in Dallas, Texas.     9.11 Entire Agreement. This Agreement sets forth the entire agreement of the partieshereto in respect of the subject matter contained herein and supersedes all prior agreements,promises, covenants, arrangements, communications, representations or warranties, whether oral orwritten, by any officer, employee or representative of any party hereto.
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EXHIBIT 10.5     **IN WITNESS WHEREOF**, the parties hereto have executed this Agreement as of the date above firstwritten.         **XANSER CORPORATION**           By: