Exhibit 10.23
Split Dollar Insurance Agreement between the Company and Xxxxxxx Life
Insurance Trust for the benefit of Xxxxxx X. Xxxxxxx, dated January 12,
1997.
225
Split Dollar Insurance Agreement
Collateral Assignment
AGREEMENT, made and entered into this 12th day of January, , by and between
Xxxxxxx Xxxxx, Inc., Des Moines, Iowa ("Company"), and Xxxxxxx Life
Insurance Trust, an irrevocable trust, ("Owner") for the benefit of Xxxxxx
X. Xxxxxxx, Des Moines, Iowa.
WHEREAS, Xxxxxx X. Xxxxxxx is a valued Director of the Company, and Company
wishes to provide additional inducement for Xxxxxx X. Xxxxxxx'x continued
involvement with the Company, and as additional compensation, Company
wishes to assist Xxxxxx X. Xxxxxxx with respect to a personal life
insurance program by entering into this Split Dollar Insurance Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
1. Policy. The life insurance policy (the "Policy") with which this
Agreement deals is identified in Exhibit "A" attached hereto and by this
reference incorporated herein. In the event that this Agreement deals with
multiple life insurance policies, each policy shall be identified in a
separate Exhibit "A" attached hereto, and all references herein to the
Policy shall include all policies with respect to which a separate Exhibit
"A" is attached hereto.
2. Ownership. The Owner shall at all times be the owner of the Policy,
and shall have the sole right to exercise all ownership rights granted to
the owner by the terms of the Policy. It is the express intention of the
parties hereto to reserve to the Owner all rights in the Policy granted by
the terms of the Policy, including, but not limited to, the right to borrow
against the Policy, the right to assign the Owner's interest in the Policy,
the right to change the beneficiary of the Policy, the right to exercise
settlement options, and the right to surrender or cancel the Policy (in
whole or in part). The Company shall not have nor exercise any right in
and to the Policy which could in any way endanger, defeat or impair any of
the rights of the Owner in the Policy. The only rights in and to the
Policy granted to the Company shall be its security interest in the cash
value of the Policy and its right to receive a portion of the death benefit
of the Policy, all as provided herein.
3. Premiums. Premiums on the Policy shall be paid by the parties hereto
as set forth in Exhibit "B" attached hereto and by this reference
incorporate herein.
4. Interest of Company in the Policy. The Company's interest in the
Policy shall be limited to the following rights in the cash value and to a
portion of the death benefit of the Policy as set forth below:
a. In the event the Policy is totally surrendered or canceled by
the Owner, the Company shall receive from the surrender proceeds of
the Policy: (I) the aggregate amount of cumulative premiums paid by
the Company, plus (ii) an amount, not less than zero, which is
calculated by taking 5.2 percent per annum of the total amount of
cumulative premiums paid by the Company to date less $150,000.00
("Amount Due Company").
b. Upon the death of the survivor of Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx'x spouse, while the Policy remains in force, the
Company shall receive from the death benefit proceeds of the Policy
the Amount Due Company.
c. In the event of the termination of this Agreement, the
Company shall be repaid by the Owner the Amount Due Company.
d. In the event the Owner obtains a policy loan with respect to
the Policy or in the event the Policy is partially surrendered and
such loan or partial surrender causes the net cash surrender value of
the Policy to be a sum less than the Amount Due Company, the Owner
will repay to the Company a portion of any Policy loan proceeds or
partial surrender proceeds to the Company so as to cause the net cash
surrender value of the Policy following the policy loan or partial
surrender to be equal to or exceed the Amount Due Company.
As used in this Agreement, the term "net cash surrender value" shall mean
the cash surrender value of the Policy, less the amount of any then
existing loans or withdrawals against the Policy obtained by the Owner. As
used in this Agreement, the term "the aggregate amount of cumulative
premiums paid by the Company" shall mean the aggregate amount of premiums
paid by the Company net of any repayment to the Company of such amount.
5. Collateral Assignment. Contemporaneously herewith the Owner has
assigned the Policy as collateral security to secure payment of the amounts
payable to Company identified herein under a form of Collateral Assignment
which has been filed with the insurance company issuing the Policy. In the
event of a total or partial surrender of the Policy, termination of this
Agreement or upon the death of the survivor of Xxxxxx X. Xxxxxxx and Xxxxxx
X. Xxxxxxx'x spouse, the amounts payable
to the Company identified herein shall be paid to the Company in accordance
with the terms of such Collateral Assignment.
6. Upon the death of the survivor of Xxxxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxxx'x spouse, the balance of the death benefit under the Policy in
excess of the amount payable to the Company under the provisions hereof, if
any, shall be paid directly to the beneficiary or beneficiaries designated
by the Owner in the manner and in the amounts provided by the beneficiary
designation of the Policy filed with the insurance company issuing the
Policy.
7. Termination. This Agreement may be terminated at any time upon the
mutual agreement of the parties hereto.
8. Assignment by Owner. In the event the Owner shall transfer all
interest in the Policy to a transferee, then all of the Owner's interest in
the Policy and in this Agreement shall be vested in the transferee, who
shall become a substituted party hereto and who shall become bound by the
provisions hereof, and the Owner shall have no further interest in the
Policy or in this Agreement.
9. Assignment by Company. The Company shall not assign any of its rights
in the Policy or in this Agreement to anyone other than the Owner (or the
Owner's transferee, if the Owner has transferred its rights in the Policy)
without the prior written consent of the Owner (or the Owner's transferee,
if the Owner has transferred its rights in the Policy). Any attempted
assignment or transfer by the Company in violation of this paragraph shall
be null and void and of no force and effect.
10. Insurer Liability. The insurance company which issues the Policy shall
not be deemed to be bound by the provisions of this Agreement nor to have
notice of the terms of this Agreement. Any and all liability of the
insurance company issuing the Policy shall be determined solely by
reference to the terms of the Policy, any applicable riders to the Policy,
the beneficiary designation with respect to the Policy, the Collateral
Assignment with respect to the Policy and any other documents filed with
the insurance company and accepted and acknowledged by the insurance
company.
11. Split Dollar Plan. This Agreement is intended to qualify the ownership
of the Policy as a collateral assignment method split dollar life insurance
Director benefit plan as described in Revenue Ruling 64-328, and shall be
administered so as to qualify as such a plan.
12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and cannot be
amended, altered, modified, except by a written instrument signed by each
of the parties hereto.
13. Notices. Any notice, consent or demand required or permitted to be
given under the provisions of this Agreement by one party to another shall
be in writing, shall be signed by the party giving the notice, and shall be
given either by delivery to the other party personally, or by mailing, by
United States certified mail, postage prepaid, to the other party,
addressed to the other party's last known mailing address as shown on the
records of the Company. In the event such notice is given by mailing, the
date of mailing shall be deemed the date of the giving of such notice,
consent or demand.
14. Binding on Successors and Assigns. This Agreement shall bind and inure
to the benefit of the parties and their respective heirs, successors and
assigns.
15. Governing Law. This Agreement shall be deemed made in the state of
Iowa, the this Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the state of Iowa.
16. Severability. In the event a particular provision of this Agreement is
held to be invalid under applicable law, effect shall nevertheless be given
to all valid provisions hereof to further the objectives of this Agreement.
17. Interpretation. Where appropriate in this Agreement, words used in the
singular shall include the plural, and words used in the masculine or
neuter shall include the feminine.
18. Named Fiduciary and Plan Administrator. For the purposes of the
Director Retirement Security Act of 1974 (ERISA), the Company shall be the
"Named Fiduciary" and Plan Administrator of the split dollar insurance plan
for which this Agreement is hereby designated the written plan instrument.
The Company, as Named Fiduciary, shall have authority to control and
manage the operation and administration of this Agreement, and it shall be
responsible for establishing and carrying out a funding policy and method
consistent with the objectives of this Agreement. Any decision by the
Company denying a claim for benefits under this Agreement shall be stated
in writing, set forth specific reasons for the denial, and be delivered or
mailed to the claimant. All claim procedures under this split dollar
insurance plan shall be performed in compliance with the requirements of
ERISA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
year and date first above written.
Xxxxxxx Xxxxx, Inc.
Company
By /s/ Xxxxxx X. Xxxxxxx
Its CFO/Treasurer/Secretary
Owner
By __________________________
Xxxxxxx X. Xxxxxxx, Trustee of the
Xxxxxxx Family Life Insurance Trust
EXHIBIT "A"
Policy Number: 53595674
Issued by: Manulife Financial
Providing for initial death benefit proceeds of $2,000,000.
This policy is a survivorship life insurance policy on the lives of Xxxxxx
X. Xxxxxxx and Xxx Xxxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxx'x wife, which pays a
death benefit only upon the death of the survivor of Xxxxxx X. Xxxxxxx and
Xxx Xxxxxxxx Xxxxxxx.
EXHIBIT "B"
Premiums
The Company shall pay annually $48,314 of the premiums due on the Policy
for 6 years.
Collateral Assignment
THIS ASSIGNMENT is made and entered into this 12th day of January, 1997, by
the undersigned as owner (the "Owner") of a certain life insurance policy
number 53595674 (the "Policy") issued by Manulife Financial (the "Insurer")
upon the lives of Xxxxxx X. Xxxxxxx and Xxx Xxxxxxxx Xxxxxxx, and Xxxxxxx
Bank, Inc. (the "Assignee").
WHEREAS, Xxxxxx X. Xxxxxxx ("Director") is a valued Director of the
Assignee, and
WHEREAS, Owner has entered into a Split Dollar Agreement with the Assignee
(the "Agreement"), and
WHEREAS, in consideration of the Assignee agreeing to make certain premium
payments, the Owner agrees to grant the Assignee a security interest in the
Policy as collateral security for the repayment of the Amount Due Company.
NOW, THEREFORE, the undersigned Owner hereby assigns, transfers and sets
over to the Assignee the following specific rights in the Policy subject to
the following terms and conditions:
1. This Assignment is made, and the Policy is to be held, as collateral
security for all liabilities of the Owner to the Assignee, either now
existing or that may hereafter arise, pursuant to the terms of the
Agreement.
2. The Assignee's interest in the Policy shall be strictly limited to:
a. The right to be repaid from the surrender proceeds of the Policy:
(I) the aggregate amount of cumulative premiums paid by the Company, plus
(ii) an amount, not less than zero, which is calculated by taking 5.2
percent per annum of the total amount of cumulative premiums paid by the
Company to date less $150,000.00 ("Amount Due Company") in the event the
Policy is totally surrendered or canceled by the Owner.
b. The right to be repaid from the death benefit proceeds of the
Policy the Amount Due Company upon the death of the survivor of the
Director and the Director's spouse, while the Policy remains in force.
c. The right to be repaid the Amount Due Company in the event of
the termination of the Agreement.
d. The right to be repaid a portion of any Policy loan proceeds
or partial surrender proceeds paid to the Owner so as to cause the net
cash surrender value of the Policy to be equal to or exceed the Amount
Due Company in the event the Owner obtains a Policy loan or in the
event the Policy is partially surrendered and such loan or partial
surrender causes the net cash surrender value of the Policy to be a
sum less than the Amount Due Company.
As used in this Assignment, the term "net cash surrender value" shall mean
the cash surrender value of the Policy, less the amount of any then
existing loans or withdrawals against the Policy obtained by the Owner. As
used in this Assignment, the term "the aggregate amount of cumulative
premiums paid by the Assignee" shall mean the aggregate amount of premiums
paid by the Assignee net of any repayment to the Assignee of such amount.
3. The Owner shall retain all incidents of ownership in the Policy,
including, but not limited to, the sole and exclusive rights to: borrow
against the Policy; make withdrawals from the Policy; assign Owner interest
in the Policy; change the beneficiary of the Policy; exercise settlement
options; and, surrender or cancel the Policy (in whole or in part). All of
these incidents of ownership shall be exercisable by the Owner unilaterally
and without the consent of any other person.
4. The Assignee shall, upon request, if the Policy is in the possession of
the Assignee, forward the Policy to the Insurer, without unreasonable
delay, for change of beneficiary, any election of optional mode of
settlement, or the exercise of any other right reserved by the Owner.
5. The Insurer is hereby authorized to recognize the Assignee's claims,
including the validity or the amount of any liabilities of the Owner to the
Assignee under the Agreement, the existence of any default therein, the
giving of any notice required therein or herein, or the application to be
made by the Assignee of any amounts to be paid to the Assignee. Upon the
Insurer giving prior written notice to Owner of the proposed payment of
amounts to the Assignee, the receipt of the Assignee for any sums received
by it shall be a full discharge and release therefore to the Insurer.
6. The Insurer shall be fully protected in recognizing a request made by
the Owner for surrender or cancellation of the Policy, in whole or in part,
or in recognizing a request made by the Owner for any loans against the
Policy permitted by the terms of the Policy. In the event this request is
made, upon prior written notice thereof to the Assignee the Insurer may pay
the proceeds of any surrender, cancellation, or loan to the sole order of
the Owner, or as the Owner shall direct.
7. Upon the full payment of the liabilities of the Owner to the Assignee
pursuant to the Agreement, the Assignee shall execute an appropriate
release of this Collateral Assignment.
8. It is the express intention of the Owner to assign a limited interest
in the Policy to the Assignee as security for certain premium payments made
by the Assignee, without giving the Assignee any incidents of ownership in
the Policy within the meaning of section 2042 of the Internal Revenue Code
(and regulations thereunder), or any similar provision of subsequent law.
All provisions of this Collateral Assignment (and of the Agreement) shall
be construed and exercised so as to effect this intention.
IN WITNESS WHEREOF, the Owner and Assignee have executed this Assignment
and the Insurer has acknowledged its acceptance of this Assignment
effective the day and year first above written.
Owner
By _______________________________
Xxxxxxx X. Xxxxxxx, Trustee of the
Xxxxxxx Family Life Insurance Trust
Assignee
Xxxxxxx Xxxxx, Inc.
By /s/ Xxxxxx X. Xxxxxxx
Its CFO/Treasurer/Secretary
ACCEPTED:
Insurer
Manulife Financial
By _________________________
Its ________________________
