Exhibit 10(c)
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
THIS AGREEMENT is entered into effective as the 12th day of November, 1998,
by and between ALLIANCE PHARMACEUTICAL CORPORATION (hereinafter "APC"), and
XXXXXXXX X. XXXX (hereinafter referred to as the "Insured").
WITNESSETH THAT:
WHEREAS, Insured is President of APC, and is a valued executive employee of
APC who has provided significant and substantial past services to APC, and APC
wishes to retain Insured in its employ to provide continuity in the management
of APC, and to continue to develop the management capabilities of APC; and
WHEREAS, APC, as an inducement to such continued employment, wishes to
assist Insured with his personal life insurance program, while at the same time
providing APC with key man life insurance coverage on Insured; and
WHEREAS, this Agreement is intended to qualify as a life insurance
employment benefit as described in the Internal Revenue Service Revenue Ruling
64-328, 1964-2 C.B. 11; and
WHEREAS, the parties have purchased a policy of life insurance insuring the
life of Insured (hereinafter referred to as the "Policy"), which is described in
Exhibit "A" attached hereto and by this reference made a part hereof, and which
was issued by Security Life of Denver (hereinafter referred to as the
"Insurer"); and
WHEREAS, APC and the Insured are willing to continue to pay the premiums
due on the Policy, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
contained herein, the parties hereto agree as follows:
1. INSURANCE POLICY. The parties hereto have taken all necessary action
to cause the Insurer to issue the Policy. The Insured agrees to execute a
collateral assignment of the Policy in favor of APC and the parties agree to
take any further action which may be necessary to cause the Policy to conform to
the provisions of this Agreement. The parties hereto agree that the Policy
shall be subject to the terms and conditions of this Agreement.
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2. POLICY OWNERSHIP. Except as otherwise provided in this Agreement, the
Insured shall be the sole and exclusive owner of the Policy and may exercise
without the consent of APC all of the ownership rights granted to the owner
thereof by the terms of the Policy, including, but not limited to, the right to
designate beneficiaries and select settlement options. APC shall have only the
right to receive certain death benefit proceeds in the event of the death of the
Insured as provided in Section 5 of this Agreement; and to the return of
unreimbursed premiums paid under this Agreement, less the "Economic Benefit," in
the event of the termination of this Agreement as provided in Section 6 of this
Agreement. As used in this Agreement, the term "Economic Benefit" shall mean
the cumulative value to APC of maintaining the $4,000,000 of key man life
insurance coverage on the life of the Insured, which shall be calculated
annually by using the PS-58 rates multiplied by the current death benefit
payable to APC under Section 5B(1)(a) of this Agreement. Insured shall have the
limited right to borrow against the cash surrender value of the Policy, or
otherwise receive a distribution from the Insurer, so long as said loan or
distribution does not reduce the cash surrender value of the Policy to an amount
less than the amounts which would be payable to APC under Section 6B of this
Agreement had the Agreement then terminated. Insured shall not have the right
to cancel or surrender the Policy as long as this Agreement has not been
terminated in accordance with its terms.
3. ASSIGNMENT. The Insured shall have the right to assign any part or
all of his interest in the Policy and this Agreement to any person, entity or
trust by execution of a written assignment delivered to the Insurer and APC.
Insured agrees to execute a collateral assignment in favor of APC for its
interests as set forth in this Agreement.
4. PREMIUM PAYMENTS. On or before the due date of each Policy premium,
APC shall pay the full amount of the premium due on the Policy to the Insurer,
which the parties anticipate will be approximately Sixty Two Thousand Dollars
($62,000) per year. APC shall promptly furnish to the Insured evidence of
timely payment of such premium. Within sixty (60) days of receipt of evidence
of timely premium payment, the Insured will reimburse APC for his share of the
annual premium, which the parties anticipate will be approximately Two Thousand
dollars ($2,000) per year. APC's obligation to make premium payments shall
cease as of the date of the termination of this Agreement; provided, however,
that APC shall not be entitled to a refund for any portion of the prepaid annual
premium for the policy year in which this Agreement terminates, except as
otherwise provided in Sections 5 or 6 hereof.
5. DEATH OF INSURED.
A. Upon the death of the Insured, APC and the personal
representative of the Insured shall promptly take any and all actions
necessary to obtain the death benefit proceeds provided under the
Policy.
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B. In the event of the death of the Insured before this
Agreement has otherwise terminated, the death benefit proceeds shall
be divided and paid in the following manner and order of priority:
(1) APC shall have the unqualified right to receive a
portion of such death benefit equal to the following:
(a) Four Million Dollars ($4,000,000); PLUS
(b) the total amount of the unreimbursed premiums paid
by APC during the term of this Agreement;
LESS
(c) the Economic Benefit.
Notwithstanding the above, in no event shall the amount payable
to APC exceed the Policy proceeds payable at the death of the
Insured.
(2) After payment of the death benefit to APC as provided
under paragraph B(1) of this Section 5, the remaining death
benefit provided under the Policy shall be paid to such
beneficiary or beneficiaries as the Insured may designate, in the
manner and in the amount or amounts provided in the beneficiary
designation provision of the Policy.
6. TERMINATION.
A. This Agreement shall terminate on the earliest to occur of
the following:
(1) the death of the Insured, in which event the respective
rights of the parties shall be as provided in Section 5 of this
Agreement, or
(2) the first to occur of:
(a) the date of termination of employment of Insured,
(b) April 1, 2016, or
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(c) the thirtieth (30th) day following written notice by
APC to the Insured of its intent to terminate this
Agreement, and in each such event, the respective
rights of the parties shall be as provided in paragraph
B of this Section 6, unless otherwise mutually agreed
by the parties in writing.
B. The rights of the parties upon termination of this Agreement as
provided under paragraph A(2) of this Section 6 shall be as follows:
(1) APC shall have no further obligation to make the premium
payments set forth in Section 4 of this Agreement. APC's interest in
the Policy shall be limited to the LESSER of:
(a) the cash surrender value of the Policy as of the date
of the termination of this Agreement;
OR
(b) the total amount of the unreimbursed premium paid by
APC during the term of this Agreement, LESS the
Economic Benefit.
(2) For ninety (90) days following termination of this
Agreement, the Insured shall have the option of purchasing APC's
interest in the Policy. To purchase such interest, the Insured shall
pay to APC the total amount of the unreimbursed premium payments made
by APC hereunder, LESS the Economic Benefit. Upon receipt of such
amount, APC shall transfer all of its interest in the Policy to
Insured and agrees to take such actions required by the Insurer
(including the execution of any and all documents or instruments) to
transfer all of the interest of APC in the Policy to the Insured.
Thereafter, neither APC nor any of its respective successors and
assigns shall have any further interest in the Policy under the terms
thereof or under this Agreement.
(3) If the Insured fails to exercise such option under
paragraph B(2) of this Section 6 within such ninety (90) day
period, then APC may enforce its rights to be paid the amounts
due under paragraph B(1)(b) of this Section 6 from the cash
surrender value of the Policy. In the event the cash surrender
value of the Policy exceeds the amount due to APC under this
Agreement, the Policy and the right to such excess shall be
retained by the Insured. Upon receipt of such
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amount, APC shall transfer all of its interest in the Policy to
Insured and agrees to take such actions required by the Insurer
(including the execution of any and all documents or instruments) to
transfer all of the interest of APC in the Policy to the Insured.
Thereafter, neither APC nor any of its respective successors and
assigns shall have any further interest in the Policy under the terms
thereof or under this Agreement.
7. AMENDMENT. This Agreement may not be amended, altered or modified,
except by a written instrument signed by both parties hereto, or their
respective successor or assigns, and may not be otherwise terminated except as
provided herein.
8. BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of APC, and its successors and assigns, and the Insured and his
successors, assigns, heirs, beneficiaries, executor, administrator, or other
personal representative.
9. NOTICE. 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. The date
of such mailing shall be deemed the date of notice, consent or demand.
10. SPECIAL 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 ("ERISA"):
A. The named fiduciary shall be the Treasurer of APC (unless
this position is held by Insured in which event APC shall designate a
new named fiduciary and the parties shall amend this Agreement
accordingly).
B. The funding under this Agreement is that all premiums on the
Policy be remitted by APC to the Insurer as billed and when due.
C. 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 and the Economic Benefit.
D. For claims procedure purposes, the "Claims Manager" shall be
the Treasurer of APC (unless this position is held by Insured, in
which event APC shall designate a new Claims Manager and the parties
shall amend this Agreement accordingly).
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(1) If for any reason a claim for benefits under this
Agreement is denied by APC, the Claims Manager shall deliver to
the claimant a written explanation setting forth the specific
reasons for the denial, pertinent references to the Agreement
section on which the denial is based, such other data as may be
pertinent, and information on the procedures to be followed by
the claimant in obtaining a review of his claim, written in a
manner calculated to be understood by the claimant. For this
purpose:
(a) The claimant's claim shall be deemed filed when
presented orally or in writing to the Claims
Manager.
(b) The Claims Manager's explanation shall be in
writing delivered to the claimant within ninety
(90) days of the date the claim is filed.
2. The claimant shall have sixty (60) days following his
receipt of the denial of the claim to file with the Claims
Manager a written request for review of the denial. For such
review, the claimant or his representative may submit pertinent
documents and written issues and comments.
3. The Claims Manager shall decide the issue on review and
furnish the claimant with a copy within sixty (60) days of
receipt of the claimant's request for review of his claim. The
decision on review shall be in writing and shall include specific
reasons for the decision written in a manner calculated to be
understood by the claimant, as well as specific references to the
pertinent Agreement provisions on which the decision is based.
If a copy of the decision is not so furnished to the claimant
within such sixty (60) days, the claim shall be deemed denied on
review.
11. 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 California, except to the extent preempted by ERISA.
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12. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
ALLIANCE PHARMACEUTICAL
CORPORATION
By:___________________________________
Title:________________________________
INSURED
______________________________________
Xxxxxxxx X. Xxxx
Attest:
__________________________
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EXHIBIT "A"
A summary of the Policy attached hereto is as follows:
Insurer: Security Life of Denver
Insured: Xxxxxxxx X. Xxxx
Policy Number: 610009778
Date of Issue: September 21, 1998
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