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EX-10.38
SPLIT-DOLLAR AGREEMENT
(Xxxxxx X. and Xxxxx X. Xxxx)
THIS AGREEMENT, made and entered into by and among CONSECO, INC., an
Indiana corporation (the "Corporation"), XXXXXX X. XXXX, of Zionsville, Indiana
(the "Employee"), and XXXXXXXX X. XXXX of Orange County, California, Trustee of
the DICK FAMILY IRREVOCABLE TRUST, dated December 8, 1998 (the "Owner").
Recitals
A. The Employee is employed by the Corporation.
B. The Employee desires to provide life insurance protection for the
Employee's family in the event of the Employee's death, under a
policy of "second to die" life insurance insuring the life of the
Employee and also his wife, XXXXX X. XXXX, and payable upon the
death of the second of them, which Policy is described in Exhibit
"A" attached hereto and by this reference made a part hereof (the
"Policy"), and which was or is being issued by THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA or any of its subsidiaries (the
"Insurer").
C. The Employee is also an officer and director of the Corporation and
has contributed significantly to its success. The Corporation
desires to continue to retain the services of the Employee, and
accordingly, the Corporation is willing to pay a portion of the
premiums due on the Policy as an additional employment benefit for
the Employee, on the terms and conditions hereinafter set forth.
D. The Owner is the owner of the Policy and, as such, possesses all
incidents of ownership in and to the Policy.
E. The Corporation desires to have the Policy collaterally assigned to
it by the Owner, pursuant to a collateral assignment in the form of
Exhibit "B" attached hereto and by this reference made a part hereof
or such other form as proposed by the Insurer that is acceptable to
the parties hereto (the "Collateral Assignment"), to secure the
repayment of the amounts which it will pay toward the premiums on
the Policy.
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F. The parties hereto intend that under the Collateral Assignment, the
Corporation shall receive only the right to such repayment, with the
Owner retaining all other ownership rights in the Policy, as
specified herein, and the Corporation shall have no "incidents of
ownership" (as defined in Treas. Reg. Section 20.2042-l(c)(2)) in
the Policy.
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Agreement
NOW, THEREFORE, in consideration of the foregoing Recitals, of the
mutual covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Purchase of the Policy. The Owner has purchased the Policy from the
Insurer in the total face amount of $10,000,000. The parties hereto
have taken all necessary action to cause the Insurer to issue the
Policy, and shall take any further action which may be necessary to
cause the Policy to conform to the provisions of this Agreement. The
Corporation agrees that it will take such actions as are necessary
to cause the Policy to remain in full force and effect during the
lifetimes of the Employee and his said wife. The parties hereto
agree that the Policy shall be subject to the terms and conditions
of this Agreement and of the Collateral Assignment filed with the
Insurer relating to the Policy.
2. Ownership of the Policy.
a. The Owner shall be the sole and absolute owner of the Policy,
and may exercise all ownership rights granted to the owner
thereof by the terms of the Policy, except as may otherwise be
provided herein.
b. It is the agreement of the parties hereto and the Collateral
Assignment that the Owner shall retain all rights which the
Policy grants to the owner thereof. The sole right of the
Corporation hereunder shall be to be repaid the amounts which
it has paid toward the premiums on the Policy and,
accordingly, the Corporation shall have no "incidents of
ownership" (as defined in Treas. Reg. Section 20.2042-l(c)(2))
in the Policy, except the right to borrow against its cash
surrender value, subject to the terms hereof and provided the
Corporation shall pay when due any and all interest and other
charges assessed by the Insurer regarding such indebtedness.
Specifically, but without limitation, the Corporation shall
neither have nor exercise any right as collateral assignee of
the Policy which could in any way defeat or impair the Owner's
right to receive the cash surrender value or the death
proceeds of the Policy in excess of the amount due the
Corporation hereunder. All provisions of this Agreement and of
the
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Collateral Assignment shall be construed so as to carry out
such intention.
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3. Payment of Premiums.
a. Thirty (30) days prior to the due date of each Policy premium,
the Corporation shall notify the Employee or the Owner of the
exact amount due (i) while both the Employee and his said wife
are living, from the Employee hereunder, measured by the IRS
PS 38 table rates, and (ii) after the first of them to die,
from the Employee (or his said wife if the Employee has
predeceased her) hereunder, which shall be an amount equal to
the annual cost of current life insurance protection under the
Policy, measured by the lower of the PS 58 rate, set forth in
Rev. Rul. 55-747, 1955-2 C.B. 228 (or the corresponding
applicable provision of any subsequent Revenue Ruling), or the
Insurer's current published premium rate for annually
renewable term insurance for standard risks. Either the
Employee (or his said wife) or the Owner, on behalf of the
Employee, shall pay such required contribution to the
Corporation prior to the premium due date. If neither the
Employee nor the Owner makes such timely payment, the
Corporation, in its sole discretion, may elect to make the
Employee's portion of the premium payment, which payment shall
be recovered by the Corporation as provided herein.
b. On or before the due date of each Policy premium, or within
the grace period provided therein, the Corporation shall pay
the full amount of the premium to the Insurer, and shall, upon
request, promptly furnish the Employee (or his said wife, if
the Employee has predeceased her) and the Owner evidence of
timely payment of such premium. The Corporation shall annually
furnish the Employee and the Owner evidence of timely payment
of such premium. The Corporation shall annually furnish the
Employee (or his said wife, if the Employee has predeceased
her) a statement of the amount of income reportable by the
Employee for federal and state income tax purposes, if any, as
a result of the insurance protection provided the Owner as the
policy beneficiary.
4. Collateral Assignment. To secure the repayment to the Corporation of
the amount of the premiums on the Policy paid by it hereunder, the
Owner has, contemporaneously herewith, assigned the Policy to the
Corporation as
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collateral in accordance with the terms of the Collateral
Assignment. The Collateral Assignment of the Policy to the
Corporation hereunder shall not be terminated, altered or amended by
the Owner while this Agreement is in effect. The parties hereto
agree to take all action necessary to cause the Collateral
Assignment to conform to the provisions of this Agreement.
5. Limitations on Owner's Rights in Policy. The Owner shall not sell,
assign, transfer, borrow against, surrender or cancel the Policy,
change the beneficiary designation provision thereof, or terminate
the dividend election thereof.
6. Collection of Death Proceeds.
a. Upon the second death of the Employee and his said wife, the
Corporation and the Owner shall cooperate to take whatever
action is necessary to collect the death benefit provided
under the Policy. When such benefit has been collected and
paid as provided herein, this Agreement shall thereupon
terminate.
b. Upon the second death of the Employee and his said wife, the
Corporation shall have the unqualified right to receive a
portion of such death benefit equal to the total amount of the
premiums paid by it hereunder. The balance of the death
benefit provided under the Policy, if any, shall be paid
directly to the Owner, in the manner and in the amount or
amounts provided in the beneficiary designation provision of
the Policy. Notwithstanding any term or provision hereof to
the contrary, in no event shall the amount payable to the
Corporation hereunder exceed the Policy proceeds payable at
the second death of the Employee and his said wife. No amount
shall be paid from such death benefit to the Owner until the
full amount due the Corporation hereunder has been paid. The
parties hereto agree that the beneficiary designation
provision of the Policy shall conform to the provisions
hereof.
c. Notwithstanding any term or provision hereof to the contrary,
in the event that, for any reason whatsoever, no death benefit
is payable under the Policy upon the second death of the
Employee and his said wife and in lieu thereof the Insurer
refunds all or any part of the premiums paid for the Policy,
the
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Corporation and the Owner shall have the unqualified right to
share such premiums based on their respective cumulative
contributions thereto.
7. Termination of the Agreement During the Employee's and His Said
Wife's Lifetimes. This Agreement shall terminate, during the
lifetimes of Employee and his said wife, without notice, upon the
occurrence of any of the following events: (1) bankruptcy of the
Corporation; or (2) failure of the Employee (or his said wife) and
the Owner to timely pay the Corporation the Employee's (or his said
wife's) portion of the premium, if any, due hereunder, unless the
Corporation elects to make such payment on behalf of the Employee,
as provided herein.
8. Disposition of the Policy on Termination of the Agreement During the
Employee's and His Said Wife's Lifetimes.
a. For sixty (60) days after the date of the termination of this
Agreement during the lifetimes of Employee and his said wife,
the Owner shall have the option of obtaining the release of
the Collateral Assignment. To obtain such release, the Owner
shall repay to the Corporation the total amount of the premium
payments made by the Corporation hereunder, less any
indebtedness secured by the Policy which was incurred by the
Corporation and remains outstanding as of the date of such
termination, including any interest due on such indebtedness.
Upon receipt of such amount, the Corporation shall release the
Collateral Assignment, by the execution and delivery of an
appropriate instrument of release.
b. If the Owner fails to exercise such option within such sixty
(60) day period, then, at the request of the Corporation, the
Owner shall execute any document or documents required by the
Insurer to transfer the interest of the Owner in the Policy to
the Corporation. Alternatively, the Corporation may enforce
its right to be repaid the amount of the premiums on the
Policy paid by it from the cash surrender value of the Policy
under the Collateral Assignment; provided, however, tha in the
event the cash surrender value of the Policy exceeds the
amount due the Corporation, such excess shall be paid to the
Owner. Thereafter, neither the Owner nor the Owner's
successors, assigns or beneficiaries shall have any
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further interest in and to the Policy, under the terms
thereof, under this Agreement or the Collateral Assignment.
9. Insurer Not a Party. The Insurer shall be fully discharged from its
obligations under the Policy by payment of the Policy death benefit
to the beneficiary or beneficiaries named in the Policy, subject to
the terms and conditions of the Policy. In no event shall the
Insurer be considered a party to this Agreement, or any modification
or amendment hereof. No provision of this Agreement, or of any
modification or amendment hereof, shall in any way be construed as
enlarging, changing, varying or in any other way affecting the
obligations of the Insurer as expressly provided in the Policy,
except insofar as the provisions hereof are made a part of the
Policy by the Collateral Assignment.
10. Amendment. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or
their respective successors or assigns, and may not be otherwise
terminated except as provided herein.
11. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and assigns, and
the Employee, the Owner, and their respective successors, assigns,
heirs, executors, administrators and beneficiaries.
12. Notices. Any notice, consent or demand required or permitted to be
given under the provisions of this Agreement shall be in writing,
and shall be signed by the party giving or making the same. If such
notice, consent or demand is mailed to a party hereto, it shall be
sent by United States certified mail, postage prepaid, addressed to
such party's last known address as shown on the records of the
Corporation. The date of such mailing shall be deemed the date of
notice, consent or demand.
13. Governing Law. This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance with the
laws of the State of Indiana.
14. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which, together,
shall be deemed one and the same document.
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IN WITNESS WHEREOF, the parties hereto have executed this Split-Dollar
Agreement on this 18th day of December, 1998.
CONSECO, INC. DICK FAMILY IRREVOCABLE
TRUST, dated December 8, 1998
By: /S/ XXXXXXX X. XXXXXXX By: /s/ Xxxxxxxx X. Xxxx
------------------------ -------------------------------
Printed: Xxxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxx, Trustee
Title: Chief Executive Officer
"Corporation" "Owner"
/s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
"Employee"
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EXHIBIT "A"
The following life insurance policy is subject to the attached
Split-Dollar Agreement:
Insurer: The Prudential Insurance Company of America
Insured: Xxxxxx X. Xxxx and Xxxxx X. Xxxx
Policy Number: V0001461
Face Amount: $10,000,000
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EXHIBIT "B"
COLLATERAL ASSIGNMENT OF LIFE INSURANCE POLICY
PURSUANT TO SPLIT-DOLLAR AGREEMENT
1. Assignment. FOR VALUE RECEIVED, XXXXXXXX X. XXXX, of Orange County,
California, Trustee of the DICK FAMILY IRREVOCABLE TRUST, dated December 8,
1998, (the "Owner"), does hereby assign, transfer and set over to CONSECO, INC.,
an Indiana corporation, and its successors and assigns (the "Assignee"), the
following specific rights in and to the "second to die" policy listed on Exhibit
"A" attached hereto and by this reference made a part hereof, issued by the
insurance company listed on Exhibit "A" (the "Insurer"), together with any
supplementary contract or contracts issued in connection therewith (said policy,
together with said supplementary contract or contracts are hereinafter
collectively referred to as the "Policy"), insuring the life of XXXXXX X. XXXX
of Zionsville, Indiana (the "Insured") and his wife, XXXXX X. XXXX on a "second
to die" basis subject to all the terms and conditions of the Policy and to all
superior liens, if any, which the Insurer may have against the Policy. The Owner
by this Assignment, and the Assignee, by the acceptance of the assignment to it
hereunder, agree to the terms and conditions contained herein.
2. Liabilities Secured by This Assignment. This Assignment is made, and
the Policy is to be held as collateral security for, all liabilities of the
Owner to the Assignee, now existing or hereafter arising under and pursuant to
that certain Split-Dollar Agreement, among the Assignee, the Insured and the
Owner, dated December 18th, 1998 (the "Split-Dollar Agreement"). It is the
intention of the Owner to reserve all rights in and to the Policy, except those
specific rights to realize on a portion of the cash value thereof and a portion
of the death benefit thereof granted to the Assignee hereby, as security for and
only to the extent of the liabilities of the Owner to the Assignee under the
Split-Dollar Agreement.
3. Assignee's Limited Rights. It is expressly agreed that the
Assignee's interest in the Policy shall be limited to the following rights: (a)
the right to be paid for its premium payments, less any indebtedness secured by
the Policy which was incurred by the Corporation, pursuant to, and as provided
by, the Split-Dollar Agreement, with respect to the Policy (the "Payment
Amount"); (b) the right to be paid the Payment Amount by realizing on a portion
of the cash value of the Policy in the event of the termination of the
Split-Dollar Agreement, as provided in the Split-Dollar Agreement; and (c) the
right to be paid the Payment Amount by realizing on a portion of the proceeds of
the Policy upon the second death of the Insured and said wife. The Assignee
shall have no other or further rights in and to the Policy as a result of the
assignment hereunder. Except as otherwise provided in the Split-Dollar
Agreement, the Assignee shall not have the right to borrow against, make
withdrawals, cancel, surrender, pledge or assign the Policy, or exercise any
other "incidents of ownership" as defined under Treas. Reg. Section
20.2042-l(c)(2).
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4. Owner Retains All Other Incidents of Ownership. Except as
specifically provided herein, the Owner shall retain all incidents of ownership
in and to the Policy, including, but not limited to: (a) the sole right to
collect and receive all distributions or shares of surplus, dividend deposits or
additions to the Policy now or hereafter made or apportioned thereto, except as
otherwise provided herein, and to exercise any and all options contained in the
Policy with respect thereto; (b) the sole right to exercise all non-forfeiture
rights permitted by the terms of the Policy or allowed by the Insurer and to
receive all benefits and advantages derived therefrom; (c) the sole right to
elect any optional mode of settlement permitted by the Policy or allowed by the
Insurer; and (d) the right to collect from the Insurer that portion of the net
proceeds of the Policy when it becomes a claim by death or maturity not payable
to the Assignee under the Split-Dollar Agreement; provided however, that the
foregoing rights retained by the Owner shall be subject to the terms and
conditions of the Split-Dollar Agreement.
5. Additional Agreements of the Assignee. The Assignee agrees with the
Owner as follows: (a) any balance or sums received hereunder from the Insurer
remaining after payment of the then existing liabilities of the Owner to the
Assignee under the Split-Dollar Agreement shall be paid to the persons entitled
thereto under the terms of the Policy as if this Assignment had not been
executed; (b) the Assignee will not exercise any of the rights granted herein to
it unless and until there has been default in any of the liabilities by the
Owner to the Assignee under the Split-Dollar Agreement, and until twenty (20)
days after the Assignee shall have mailed, by first class mail, to the Owner,
notice of its intention to exercise such right; and (c) the Assignee will, upon
request, forward the Policy to the Insurer, without unreasonable delay, for any
election of optional mode of settlement, or the exercise of any other right
reserved by the Owner hereunder.
6. Insurer. The Insurer is hereby authorized to recognize the
Assignee's claims to rights hereunder without investigating the reason for any
action taken by the Assignee, the validity or amount of any of the liabilities
of the Owner to the Assignee under the Split-Dollar Agreement, the existence of
any default therein, the giving of any notice required herein, or the
application to be made by the Assignee of any amounts to be paid to the
Assignee. The sole signature of the Assignee or the Owne shall be sufficient for
the exercise of their respective rights under the Policy and this Assignment and
the sole receipt of the Assignee or the Owner for any sums received by the
respective party from the Insurer shall be a full discharge and release therefor
to the Insurer.
7. Insurer Relieved of Liability. The Insurer shall be fully protected
in (and shall have no liability from) recognizing (and complying with) any
request made by the Owner or Assignee, with or without the consent of any other
person or entity.
8. Release of This Collateral Assignment. Upon the full payment of the
liabilities of the Owner to the Assignee pursuant to the Split-Dollar Agreement,
the Assignee shall promptly release and reassign to the Owner all specific
rights in the Policy included in this Assignment.
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9. Additional Rights and Powers of Assignee. The exercise of any right,
option, privilege or power herein granted to the Assignee shall be at the option
of the Assignee, and except as provided herein, the Assignee may exercise any
such right, option, privilege or power without notice to, or assent by, or
affecting the liability of, or releasing any interest hereby assigned by the
Owner. The Assignee may take or release other security, may grant extensions,
renewals or indulgences with respect to the obligations of the Owner to the
Assignee under the Split-Dollar Agreement, or may apply the proceeds of the
Policy hereby assigned or any amount received on account of the Policy by the
exercise of any right permitted under this Assignment, without resorting to or
regard to other security, if any.
10. Conflicts. In the event of any conflict between the provisions of
this Assignment and the provisions of the Split-Dollar Agreement, with respect
to the Policy or the Assignee's rights of collateral security therein, the
provisions of this Assignment shall prevail.
11. No Bankruptcy Proceeding. The Owner declares that no proceedings in
bankruptcy are pending against the Owner, and that the Owner's property is not
subject to any assignment for the benefit of creditors of the Owner.
12. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which, together, shall be
deemed one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Collateral
Assignment of Life Insurance Policy Pursuant to Split-Dollar Agreement on this
18th day of December, 1998.
DICK FAMILY IRREVOCABLE TRUST,
dated December 8, 1998
By:
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Xxxxxxxx X. Xxxx, Trustee
"Owner"
Agreed and accepted on this 18th day of December, 1998.
CONSECO, INC.
By:
Printed:
Title:
"Assignee"
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EXHIBIT "A"
The following life insurance policy is subject to the attached
Collateral Assignment:
Insurer: The Prudential Insurance Company of America
Insured: Xxxxxx X. Xxxx and Xxxxx X. Xxxx
Policy Number: V0001461
Face Amount: $10,000,000
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