EXHIBIT (10)(H)
PS GROUP, INC.
AMENDED AND RESTATED
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
THIS AGREEMENT is made as of the 31st day of December, 1991 (the "Original
Agreement"), and amended and restated as of the 1st day of January, 1999 (as so
amended, "this Agreement"), by and between PS Group, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxxxxxxxx (the "Owner").
ARTICLE I
DEFINITIONS
1.1 Collateral Assignment shall mean the Collateral Assignment Agreement,
dated December 1, 1991, assigning the Policy as collateral to the Company
pursuant to paragraph 2.5 of the Original Agreement.
1.2 Cumulative Company Premiums shall mean the aggregate of (i) the
cumulative premiums paid by the Company on the Policy pursuant to paragraph 2.3
of the Original Agreement, (ii) the premium paid by the Company on the Policy on
January 27, 1998 pursuant to authorization of the Board of Directors of the
Company and with the approval of the Company's parent corporation, and (iii) the
cumulative premiums paid by the Company on the Policy pursuant to paragraph 2.3
of this Agreement.
1.3 Economic Benefit shall mean the value of the economic benefit of the
life insurance coverage provided under this Agreement for income tax purposes as
determined on the basis of the Internal Revenue Code and regulations and revenue
rulings issued by the Internal Revenue Service and other applicable authorities.
1.4 Executive shall mean Xxxxxxx X. Xxxxxxxxxxxxx, Xx.
1.5 Insurance Company shall mean Pacific Life Insurance Company.
1.6 Policy shall mean the life insurance policy on the life of the
Executive, purchased by the Owner pursuant to paragraph 2.1 of this Agreement,
or any other policy or policies substituted therefor.
ARTICLE 2
POLICY
2.1 Policy. The Owner has entered into a contract of life insurance with
the Insurance Company insuring the life of the Executive. The Policy number is
1A2246221-0. The Owner hereby agrees that the Policy shall be subject to the
term and conditions of this Agreement and Collateral Assignment.
2.2 Incidents of Ownership. The Owner shall hold all incidents of
ownership in the Policy, except as otherwise provided in this Agreement and the
Collateral Assignment.
2.3 Premiums. The Company shall make every annual premium Payment, the
due date of which occurs on a date on which the Executive is employed by the
Company or any parent or subsidiary of the Company. Any further premium
payments necessary to maintain the policy will be paid by the Owner, at the
discretion of the Owner.
2.4 Surrender, Borrowing and Withdrawal Rights. Neither the Owner nor the
Company shall be entitled to surrender the Policy, to borrow against the Policy
or to make withdrawals from the Policy, except by mutual consent evidenced by a
written instrument executed by the Company and the Owner.
2.5 Collateral Assignment. To secure the Company's interest in the Policy
under this Agreement, the Owner has assigned the Policy to the Company as
collateral under the Collateral Assignment and hereby agrees not to purport to
revoke or modify the Collateral Assignment or take any action inconsistent
therewith.
ARTICLE 3
DEATH BENEFIT
3.1 Except as provided in Section 3.2, in the event of the Executive's
death (whether before or after he retires or otherwise terminates employment
with the Company or any parent or subsidiary of the Company) prior to
termination of this Agreement, the Company shall be entitled to receive from the
proceeds of the Policy, if sufficient, an amount equal to the Cumulative Company
Premiums. The balance of the proceeds, if any, shall he paid to the Owner and
thereupon this Agreement and the Collateral Assignment shall both terminate.
3.2 Notwithstanding anything to the contrary in Section 3.1:
3.2.1 In the event of the Executive's death at a time when he is still
employed by the Company or any parent or subsidiary of the Company, the maximum
amount that the Company shall be entitled to receive from the proceeds of the
Policy under Section3.1 shall be an amount equal to the lesser of (x)the
Cumulative Company Premiums and (y)such amount as will not result in the
proceeds of the Policy that are received by the Owner being less than $400,000;
and
3.2.2 In the event of the Executive's death at a time when (for any
reason whatsoever) he is no longer employed by the Company or any parent or
subsidiary of the Company, the maximum amount that the Company shall be entitled
to receive from the proceeds of the Policy under Section3.1 shall be an amount
equal to the lesser of (x)the Cumulative Company Premiums and (y)such amount as
will not result in the proceeds of the Policy that are received by the Owner
being less than $200,000.
ARTICLE 4
AMENDMENT OR TERMINATION OF AGREEMENT
Except as otherwise provided in this Agreement, the Company shall not amend
or terminate this Agreement without the written consent of the Owner. The Owner
shall have the right to terminate this Agreement at any time by paying the
Company an amount equal to the Cumulative Company Premiums, thereupon the
Company shall release all rights and interest in the Policy to the Owner and
this Agreement and the Collateral Assignment shall both terminate.
ARTICLE 5
MISCELLANEOUS
5.1 Binding Effect. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns.
5.2 Gender, Singular and Plural. All pronouns and any variations thereof
shall be deemed to refer to the masculine , feminine, or neuter, as the identity
of the person or persons may require. As the context may require, the singular
may be read as the plural and the plural as the singular.
5.3 Captions. The captions of the articles and paragraphs of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
5.4 Validity. In the event any provision of this Agreement is held
invalid, void or unenforceable, the same shall not affect, in any respect
whatsoever, the validity of any other provisions of this Agreement.
5.5 Notice. Any notice or filing required or permitted to be given to the
Company or the Owner under this Agreement shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, in the case of the
Company, to the principal office of the Company, directed to the attention of
its President, and in the case of the Owner, to the address indicated at the end
of this Agreement. Such notice shall be deemed given as of the date of delivery
or, if delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
5.6 Notice to Insurance Company. The Insurance Company shall not be a
party to this Agreement. The Company shall be responsible for notifying the
Insurance Company of any changes in the ownership rights and interest of the
Company and the Owner and the Insurance Company shall be entitled to rely upon
such notification received from the Company.
5.7 Waiver of Breach. The waiver by either party of any breach of any
provision or condition under this Agreement shall not operate or be construed as
a waiver of any subsequent condition or breach.
5.8 Arbitration. Any dispute relating to this Agreement shall be settled
by arbitration, before three arbitrators in San Diego County, in accordance with
the Rules of the American Arbitration Association. Each of the parties shall
select one arbitrator, and these two arbitrators shall select the third
arbitrator, provided that, if the third arbitrator cannot be agreed upon, he or
she shall be selected by the presiding judge of the Superior Court of San Diego
County, upon petition brought by either party. The award of the arbitrators in
any arbitration proceeding shall be final and may be enforced in any court of
competent jurisdiction. The unsuccessful party to such arbitration proceeding
shall pay to the successful party (i) all costs and expenses (including
reasonable attorney's fees) incurred therein by the successful party, all of
which shall be included in, and as a part of, the award rendered in such
proceeding, and (ii) all such costs and expenses incurred by the successful
party in enforcing such arbitration award.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
authority of its Board of Directors, and the Owner has hereunto set her hand, on
the day and year first above written.
PS GROUP, INC.
By: /s/ Xxxxxxx Xxxxx
______________________________
Xxxxxxx Xxxxx
Vice President, Secretary, and
Controller
/s/ Xxxxx Xxxxxxxxxxxxx
______________________________
Xxxxx Xxxxxxxxxxxx
000 Xxxxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
