Exhibit 10.88
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
THIS AGREEMENT is made effective on February 15, 2001, between
UnitedGlobalCom, Inc., a Delaware corporation (the "Corporation"), and Xxxx X.
Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, as trustees under The Xxxx X.
Xxxxxxxxx 2001 Trust, dated February 12, 2001 (the "Owner").
RECITALS:
A. Xxxx X. Xxxxxxxxx is a valued employee of the Corporation.
B. The Owner owns certain policies of joint survivor life insurance
(collectively the "Policies" and individually a "Policy") on the lives of Xxxx
X. Xxxxxxxxx and his wife, Xxxxxx Xxxxxxxxx (collectively called the "Insureds"
and individually called an "Insured"), as shown on Exhibit A attached hereto.
The insurance companies issuing the Policies are collectively called the
"Insurers" and individually called an "Insurer".
C. The Corporation wishes the Insured to continue his employment
with the Company and, as an inducement thereto, the Company is willing to assist
the Owner in the payment of premiums for the Policies as provided in this
Agreement.
D. The parties intend this Agreement to constitute a plan of split
dollar life insurance under Revenue Ruling 64-328, 1964-2 C.B. 11 and Revenue
Ruling 66-110, 1966-1 C.B. 12. However, the parties also understand it is
possible that significant changes may be made in the tax treatment of split
dollar life insurance as well as in the federal transfer tax system. If, in
fact, changes become effective, this Agreement contemplates that the parties
would evaluate those future changes in the tax laws, regulations, and rules and
mutually determine what changes, if any, should be considered to this Agreement.
E. The Company, the Owner, and the Employee intend for the tax
consequences of this Agreement to be limited so that (i) the amount of the
"deemed" distribution to the Employee from the Company is equal to only the
taxable economic benefit of the arrangement from the
current life insurance protection provided for each such year in which the
Company is not reimbursed for said economic benefit, and (ii) the amount of the
"deemed" gift from the Employee to the beneficiaries of the Owner is equal to
the economic benefit from the current life insurance protection provided for
each such year this split dollar arrangement is in effect.
THEREFORE, for value received, the parties agree:
1. PREMIUM PAYMENTS. Until this Agreement is terminated, the
Corporation and the Owner shall make payments as provided in this Section.
1.1 The Corporation shall timely pay all premiums on each
Policy.
1.2 Each year the Owner shall contribute to the Corporation
an amount equal to the annual economic benefit provided by the Policies and
which, but for the payment of that amount by the Owner, would be included in
gross income for federal income tax purposes. That annual economic benefit shall
be computed in accordance with Revenue Rulings 64-328 and 66-110. The
Corporation shall be responsible for computing the amount of the annual economic
benefit, and will advise the Owner, at least thirty (30) days prior to the day
it expects to be reimbursed, of the amount payable by Owner under this Section.
1.3 For purposes of this Agreement, the "Corporation's
Interest" in a Policy is an amount equal to the total premiums paid on that
Policy from the date of this Agreement to the date as of which the Corporation's
Interest is being determined, plus all legal fees incurred and paid by the
Corporation in connection with this Agreement, reduced by (i) all contributions
made by the Owner to the Corporation under Section 1.2; and (ii) any policy
loans, including the accrued interest thereon, which have been used to pay
premiums on that Policy.
2. OWNERSHIP OF THE POLICIES. The Owner is the sole owner and
beneficiary of each Policy.
3. CORPORATION'S RIGHTS. In consideration of the Corporation's
payment of premiums as provided in Section 1.1, and as collateral security for
the payment of the Corporation's Interest, as provided in this Agreement, the
Owner hereby collaterally assigns to the Corporation the following limited
rights in each Policy, which shall be the only rights of the Corporation in or
to each Policy:
3.1 The right to receive, upon the surrender of the Policy
by the Owner, the cash surrender proceeds up to the amount of the Corporation's
Interest in that Policy; and
3.2 The right to receive, upon the death of the
second-to-die of the Insureds, the net proceeds of the Policy up to the amount
of the Corporation's interest in that Policy. To evidence the limited assignment
of rights in each Policy by the Owner to the Corporation, as provided in this
Section, the Corporation and the Owner shall execute and file with each Insurer
a Collateral Assignment of Policy in the form of Exhibits B-1and B-2 attached
hereto. The parties agree that benefits under a Policy may be paid by the
Insurer either by separate checks to the Corporation and Owner, or by a joint
check. In the latter instance, the Owner and the Corporation agree that the
benefits shall be divided as provided herein.
4. TERMINATION OF THIS AGREEMENT.
4.1 EVENTS OF TERMINATION. This Agreement shall terminate as
to a Policy upon the happening of any of the following events:
(a) The Policy has reached its "Rollout Point". For
purposes of this Agreement, the "Rollout Point" of a Policy is that date upon
which the Insurer determines that there is sufficient net cash surrender value
in the Policy based on i) a gross investment rate of return that is the lesser
of ten percent (10%) per annum or the annual rate of return which the Insurer is
using at such time in policy illustrations as the "typical", "reasonable" or
"normal" investment return, and ii) other current policy assumptions, to fully
repay the Corporation the Corporation's Interest in that Policy and to continue
the Policy from that date without any further premium payments so that it will
endow at approximately the "Adjusted Face Amount" of the Policy upon the
thirty-fourth (34th) anniversary of the Policy's issue date. The "Adjusted Face
Amount" is $10,147,984 for the Policy with Xxxx Xxxxxxx and is $19,891,642 for
the Policy with Lincoln National. Attached as Exhibit C-1 is a copy of the
illustrations which were used by the Board of Directors when it adopted the
resolution authorizing this Agreement. Also attached
hereto as Exhibit C-2 is a copy of the supplemental illustrations of the
Policies which were actually purchased and which were signed by the trustee.
Under Exhibits C-1 and C-2, the rollout would occur in 2016 and 2017 for the
respective Policies, but there is no assurance that the actual performance of
the Policies will be as favorable as the assumptions in Exhibits C-1 and C-2 and
it is recognized that Policy performance is not guaranteed;
(b) Failure of the Owner to make a contribution to the
Corporation as required by Section 1.2;
(c) Surrender, lapse, or other termination of the
Policy by the Owner;
(d) Written notice of termination from the Owner to
the Corporation; or
(e) Death of the second-to-die of the Insureds.
Notwithstanding the foregoing, in the event of termination under Section 4.1(b),
the Agreement shall not terminate until (i) the Corporation has notified the
Owner in writing, by certified mail with return receipt, that it has failed to
make the contribution required under Section 1.2, and (ii) fifteen (15) days
have elapsed after receipt by the Owner of the notice of failure to make a
contribution without the Corporation receiving such contribution from Owner.
4.2 RIGHTS UPON TERMINATION. Upon the termination of this
Agreement as to any Policy:
(a) The obligation of the Corporation to pay premiums
on that Policy shall cease; and
(b) If the Agreement terminated under paragraph (e) of
Section 4.1, the Owner shall, immediately upon receipt of the death proceeds of
the Policies, pay to the Corporation an amount equal to the Corporation's
Interest in the Policies.
(c) If the Agreement terminated under paragraph (a),
(b), (c), or (d) of Section 4.1, the Owner shall, within sixty (60) days after
the date of termination, pay to the Corporation an amount equal to the
Corporation's Interest in the Policy as to which the termination occurred. If
full payment of the Corporation's Interest is not received by the Corporation
within that sixty (60) day period, then the remaining amount owed by the Owner
to
the Corporation shall be in default (the "default amount"), and the Owner shall
immediately either:
(i) Pay the default amount to the
Corporation; or
(ii) Transfer complete ownership of the
Policy as to which the termination occurred to the Corporation in full discharge
of the default amount.
5. THE INSURER. Each Insurer shall be bound only by the provisions
of the Policy issued by that Insurer. Any payments made or actions taken by the
Insurer in accordance with the Policy shall fully discharge the Insurer from
liability. The Insurer shall not be bound by or deemed to have notice of the
provisions of this Agreement.
6. ERISA PROVISIONS. The following provisions are part of this
Agreement and are intended to meet the requirements of the Employee Retirement
Income Security Act of 1974:
6.1 NAMED FIDUCIARY. The "named fiduciary" and "plan
administrator" is the Corporation.
6.2 FUNDING POLICY. The funding policy under this Agreement
is that all premiums on the Policy be remitted to the Insurer when due.
6.3 BASIS OF PAYMENT OF BENEFITS. Direct payment by the
Insurer is the basis of payment of benefits under this Agreement, with those
benefits in turn being based on the payment of premiums as provided in this
Agreement.
6.4 CLAIMS PROCEDURE.
(a) CLAIM. A person who believes that he or she is
being denied a claim for benefits to which he or she is entitled under this
Agreement (a "Claimant") may file a written request for such benefit with the
Corporation, setting forth the claim. The request must be addressed to the
"Claims Manager" of the Corporation at the Corporation's then principal place of
business.
(b) DECISION ON A CLAIM. If a claim is denied, the
Claims Manager shall deliver a written explanation to the Claimant, setting
forth: (1) the specific reason or
reasons for the denial; (2) references to the pertinent provisions of this
Agreement on which the denial is based; (3) a description of any additional
material or information necessary for the Claimant to perfect the claim and an
explanation of why that material or information is necessary; (4) appropriate
information as to the steps to be taken if the Claimant wishes to submit the
claim for review; and (5) the time limit for requesting a review of the claim
under Section 6.4(c). The written explanation shall be delivered to the Claimant
within ninety (90) days after receipt of the claim by the Corporation.
(c) REVIEW OF A DENIED CLAIM. A Claimant shall have
sixty (60) days following receipt of the denial of a claim to request a review
of the denial. A request for review shall be in writing and addressed to the
Claims Manager at the Corporation's then principal place of business. The
Claimant may submit pertinent documents and written issues and comments. The
Claims Manager shall review the denial of the claim, and shall furnish the
Claimant with a decision on review within sixty (60) days after receipt of the
Claimant's request for review. The decision on review shall be in writing, shall
be written in a manner calculated to be understood by the Claimant, and shall
include specific reasons for the decision and specific references to the
pertinent provisions of this Agreement on which the decision is based. If the
written decision on review is not furnished to the Claimant within the sixty
(60) day period, the claim shall be deemed denied on review.
7. ASSIGNMENT. The Owner or the Owner's nominee may assign the
Owner's rights and obligations under this Agreement with the consent of the
Corporation, which consent shall not be unreasonably withheld. The Corporation
may assign its rights and obligations under this Agreement with the consent of
the Owner or the Owner's nominee, which consent shall not be unreasonably
withheld. If a party assigns all of its rights and obligations under this
Agreement in accordance with this Section, then the assignee shall be
substituted for the assignor as a party under this Agreement.
8. AMENDMENT. This Agreement may be amended by, but only by, a
written instrument signed by each of the parties.
9. BINDING EFFECT. This Agreement shall be binding upon, and shall
inure to the benefit of, the Corporation and the Owner and their respective
successors and permitted assigns.
10. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties have signed this Agreement effective on
the date first above written.
"CORPORATION"
UnitedGlobalCom, Inc
a Delaware corporation
By /s/ XXXXX X. XXXXXXXX
------------------------------------
Name Xxxxx X. Xxxxxxxx
Title Senior Vice President
"OWNER"
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, as trustee under
The Xxxx X. Xxxxxxxxx 2001 Trust
dated February 12, 2001
/s/ XXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxxx, as trustee under
The Xxxx X. Xxxxxxxxx 2001 Trust
dated February 12, 2001
/s/ XXXXX X. XXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxx, as trustee under
The Xxxx X. Xxxxxxxxx 2001 Trust
dated February 12, 2001
EXHIBIT A
Description of Life Insurance Policies
Xxxx Xxxxxxx Life Insurance Policy No. 2006187-5
Initial Death Benefit - $10,632,392
Lincoln National Life Insurance Policy No. 4818556
Initial Death Benefit - $21,197,368
EXHIBIT B-1
COLLATERAL ASSIGNMENT
Pursuant to
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
THIS ASSIGNMENT is made on February 15, 2001, by The Xxxx X. Xxxxxxxxx
2001 Trust, as Assignor, to UnitedGlobalCom, Inc., a Delaware corporation, as
Assignee.
FOR VALUE RECEIVED, the Assignor hereby collaterally assigns to
Assignee, its successors and assigns, the following specific rights in and to
life insurance policy number 2006187-5 (the "Policy") issued by Xxxx Xxxxxxx
Life Insurance Company (the "Insurer") on the lives of Xxxx X. Xxxxxxxxx and
Xxxxxx Xxxxxxxxx (the "Insureds"):
1. This Assignment is made, and the Policy shall be held, as
collateral security for all obligations of the Assignor to Assignee pursuant to
that certain Split Dollar Life Insurance Agreement, dated February 15, 2001,
between Assignor and Assignee with respect to the Policy (the "Agreement"). This
Assignment is subject to all of the terms and conditions of the Policy and to
all superior liens, if any, which the Insurer may have against the Policy.
2. The Assignee shall have the following limited rights in and to
the Policy:
(a) The right to receive, upon the surrender of the policy
by the Assignor, the cash surrender proceeds up to the amount of the Assignee's
"Interest in the Policy" (as defined in the Agreement); and
(b) The right to receive, upon the death of the
second-to-die of the Insureds, the net proceeds of the Policy up to the amount
of the Assignee's Interest in the Policy.
(c) The Assignee may assign its Interest in the Policy with
the consent of Assignor and Assignor's nominee, which consent shall not be
unreasonably withheld.
3. Except as specifically granted in this Collateral Assignment,
the Assignor shall retain all incidents of ownership in the Policy, subject to
the terms of the Agreement.
4. The Assignee shall, upon request of the Assignor, forward the
Policy to the Insurer, without unreasonable delay, for endorsement of any
designation or change of beneficiary, any election of optional mode of
settlement, or the exercise of any other right reserved by the Assignor.
5. The Insurer shall be bound only by the provisions of this
Collateral Assignment and shall be fully discharged from all liability in
effectuating the exercise by the Assignor of any
incident of ownership over the Policy. The Insurer is not a party to the
Agreement, and shall not be bound by or deemed to have notice of the provisions
of the Agreement. Upon surrender of the Policy by the Assignor, or upon the
death of the second-to-die of the Insureds, the Insurer is authorized to pay
from the proceeds of the Policy such amount as the Assignee certifies in writing
it is entitled to under the Agreement, and the receipt of the Assignee for any
sums received by it or the receipt of the Assignor for any sums received by it
shall fully discharge and release the Insurer from any claims by either party
for the sums received. The Insurer need not investigate the validity or amount
of any claim by Assignee against the proceeds of the Policy or the application
to be made by the Assignee of any proceeds paid by the Insurer to the Assignee
pursuant to this Collateral Assignment.
6. Upon the full payment to the Assignee of the amount of its
Interest in the Policy, the Assignee shall release this Collateral Assignment.
IN WITNESS WHEREOF, the Assignor and Assignee have signed this
Collateral Assignment on the date first written above.
"ASSIGNOR"
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Xxxx X. Xxxxxx, as trustee under
The Xxxx X. Xxxxxxxxx 2001 Trust
dated February 12, 2001
"ASSIGNEE"
UnitedGlobalCom, Inc.,
a Delaware corporation
By
------------------------------------
Name
Title
EXHIBIT B-2
COLLATERAL ASSIGNMENT
Pursuant to
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
THIS ASSIGNMENT is made on February 15, 2001, by The Xxxx X. Xxxxxxxxx
2001 Trust, as Assignor, to UnitedGlobalCom, Inc., a Delaware corporation, as
Assignee.
FOR VALUE RECEIVED, the Assignor hereby collaterally assigns to
Assignee, its successors and assigns, the following specific rights in and to
life insurance policy number 4818556 (the "Policy") issued by Lincoln National
Life Insurance Company (the "Insurer") on the lives of Xxxx X. Xxxxxxxxx and
Xxxxxx Xxxxxxxxx (the "Insureds"):
1. This Assignment is made, and the Policy shall be held, as
collateral security for all obligations of the Assignor to Assignee pursuant to
that certain Split Dollar Life Insurance Agreement, dated February 15, 2001,
between Assignor and Assignee with respect to the Policy (the "Agreement"). This
Assignment is subject to all of the terms and conditions of the Policy and to
all superior liens, if any, which the Insurer may have against the Policy.
2. The Assignee shall have the following limited rights in and to
the Policy:
(a) The right to receive, upon the surrender of the policy
by the Assignor, the cash surrender proceeds up to the amount of the Assignee's
"Interest in the Policy" (as defined in the Agreement); and
(b) The right to receive, upon the death of the
second-to-die of the Insureds, the net proceeds of the Policy up to the amount
of the Assignee's Interest in the Policy.
(c) The Assignee may assign its Interest in the Policy with
the consent of Assignor and Assignor's nominee, which consent shall not be
unreasonably withheld.
3. Except as specifically granted in this Collateral Assignment, the
Assignor shall retain all incidents of ownership in the Policy, subject to the
terms of the Agreement.
4. The Assignee shall, upon request of the Assignor, forward the
Policy to the Insurer, without unreasonable delay, for endorsement of any
designation or change of beneficiary, any election of optional mode of
settlement, or the exercise of any other right reserved by the Assignor.
5. The Insurer shall be bound only by the provisions of, and
endorsements to, the Policy, and this Collateral Assignment, and shall be fully
discharged from all liability in effectuating the exercise by the Assignor of
any incident of ownership over the Policy. The Insurer is not a party to the
Agreement, and shall not be bound by or deemed to have notice of the
provisions of the Agreement. Upon surrender of the Policy by the Assignor, or
upon the death of the second-to-die of the Insureds, the Insurer is authorized
to pay from the proceeds of the Policy such amount as the Assignee certifies in
writing it is entitled to under the Agreement, and the receipt of the Assignee
for any sums received by it or the receipt of the Assignor for any sums received
by it shall fully discharge and release the Insurer from any claims by either
party for the sums received. The Insurer need not investigate the validity or
amount of any claim by Assignee against the proceeds of the Policy or the
application to be made by the Assignee of any proceeds paid by the Insurer to
the Assignee pursuant to this Collateral Assignment.
6. Upon the full payment to the Assignee of the amount of its
Interest in the Policy, the Assignee shall release this Collateral Assignment.
IN WITNESS WHEREOF, the Assignor and Assignee have signed this
Collateral Assignment on the date first written above.
"ASSIGNOR"
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Xxxx X. Xxxxxx, as trustee under
The Xxxx X. Xxxxxxxxx 2001 Trust
dated February 12, 2001
"ASSIGNEE"
UnitedGlobalCom, Inc.,
a Delaware corporation
By
------------------------------------
Name
Title
EXHIBIT C-1
[OMITTED]
EXHIBIT C-2
[OMITTED]
