EXHIBIT 10.17
SPLIT-DOLLAR LIFE INSURANCE AGREEMENT
-------------------------------------
THIS AGREEMENT, effective as of this 2nd day of May, 1998, is by and
between IMCO RECYCLING INC., a Delaware corporation having its principal
executive offices located in Irving, Texas (the "Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Trustee of the ▇▇▇▇▇▇ FAMILY INSURANCE TRUST NO. 1 (the "Trust").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, this Agreement is entered into in accordance with an award made to
▇▇▇ ▇. ▇▇▇▇▇▇ (the "Employee"), who has rendered efforts on behalf of the
Company; and
WHEREAS, this Agreement is a life insurance employee benefit plan as
described in Revenue Ruling 64-328; and
WHEREAS, the Company highly values the efforts, abilities, and
accomplishments of the Employee and wishes to retain his services, and as an
inducement thereto, the Company is willing to assist the Trust in the payment of
premiums on life insurance; and
WHEREAS, in exchange for such premium assistance, the Trust is willing to
return to the Company its Premium Advance as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, it is
mutually agreed as follows:
1. The Insurance. In furtherance of the purposes of this Agreement, the
-------------
Trust shall purchase the policy(ies) described in Exhibit A (the "Insurance")
from one or
- 1 -
more insurance companies (the "Insurer(s)") specified in Exhibit A (the
"Insurance"). Exhibit A may be amended by the parties to this Agreement, at any
time and from time to time, by a written instrument complying with Section 13 of
this Agreement. Upon the Employee's death $3,000,000.00 (hereafter referred to
as the "Trust's Death Benefit") shall be payable as the Trust shall have
designated under the Insurance, subject to Section 3 of this Agreement.
2. Ownership. The Trust shall be the sole owner of the Insurance and
---------
shall hold the Insurance. The Trust shall have all the rights of "owner" under
the terms of the Insurance including, but not limited to, the right to designate
beneficiaries, select settlement and dividend options, borrow on the security of
the Insurance, and to surrender the Insurance. All such rights may be exercised
by the Trust without the Company's consent.
3. Repayment of Premium Advance to Company. The Company's "Premium
---------------------------------------
Advance" is an amount equal to the lesser of (i) the cumulative total of the
Company's share of premiums paid on the Insurance (as provided in Section
4(a)(2)), or (ii) the cash surrender value of the Insurance as of the applicable
date. Subject to Section 6 below, in the event of the death of the Employee,
the "Premium Advance" shall be equal to the greater of (i) the cumulative total
of the Company's share of premiums paid on the Insurance, or (ii) the total
death benefits payable under the Insurance less the Trust's Death Benefit.
Subject to Section 6 below, in exchange for the Company's payment of its premium
contribution under Section 4, the Trust agrees to pay to the Company the amount
of its Premium Advance on the earlier of:
(1) Termination of this Agreement as provided in Section 6; or
(2) The Employee's death.
- 2 -
Nothing herein shall give the Company any interest in the Insurance. The Company
will not take any action in dealing with the Insurer(s) that would impair any
right or interest of the Trust in the Insurance.
4. Payment of Premiums.
-------------------
(a) Each annual premium on the Insurance shall be paid as follows:
(1) At the election of the Company, the Trust shall pay a
portion of each premium equal to (i) the current term rate of the
Employee's age, multiplied by (ii) the excess of the current death
benefit over the Company's current Premium Advance. If the Company
does not require the Trust to pay a portion of the premium pursuant to
the preceding sentence, the Company shall pay such amount on behalf of
the Trust and such amount shall be treated as compensation to the
Employee. Here, the "current term rate" shall mean the lesser of the
Insurer's annual term insurance rate or the rates specified in Revenue
Rulings 64-328 and 66-110.
(2) The Company shall pay all premium amounts not paid by the
Trust.
(b) The Trust's premium share (other than that paid with policy
loans) and the Company's premium share shall be remitted to the Insurer
before expiration of the grace period for payment of premiums.
(c) Dividend on the Insurance shall be applied as elected by the
Trust.
5. Supplements and Riders. Should the Trust deem it desirable,
----------------------
application may be made for a supplemental agreement or rider to be attached to
the Insurance.
- 3 -
Ownership of any such agreement or rider shall be in the Trust and any
additional premiums shall be paid by the Trust.
6. Termination of Agreement. This Agreement shall terminate on the
------------------------
earliest to occur of the following events:
(a) Surrender of the Insurance by the Trust, which has the sole and
exclusive right of surrender, subject to Section 3 above;
(b) Delivery by the Trust of written notice of termination to the
Company or delivery of written notice by the Company to the Trust;
(c) Failure of the Trust to make a premium contribution required in
Section 4;
(d) Written agreement of the Trust and the Company to terminate the
Agreement; or
(e) The tenth (10th) anniversary of the effective date of this
Agreement.
Upon termination of the Agreement, the Trust shall pay to the Company the
Premium Advance. Upon termination of the Agreement, the Trust and the Company
may enter into further agreement to continue the terms of this Agreement.
7. Policy Loans. It is agreed that no policy loans may be taken by the
------------
Trust which would have the effect of reducing the cash surrender value below the
amount of the Premium Advance. Interest on any such policy loans shall be paid
by the Trust, as owner of the policy, as such interest become due.
8. Payment of Proceeds. At the death of the Employee, the Company and the
-------------------
Trust shall execute such forms and furnish such other documents or information
as are required to receive payments under the Insurance as contemplated herein.
All death benefits under this Agreement shall be paid in accordance with
the terms and conditions of the Insurance and pursuant to the claims and review
- 4-
procedures of the Insurer. The Company's liability to provide benefits under
this Agreement shall be limited solely to the payment of its share of premiums,
as provided in Section 4. The Company assumes no responsibility for payment of
death benefits under the Insurance.
9. Payment Options. In lieu of a lump sum payment, the Trust, as owner of
---------------
the Insurance may, in accordance with the procedures of the Insurer(s), elect
any of the optional modes of payment for the death proceeds as enumerated in the
Insurance and known as "settlement options." If no such election is in effect,
the beneficiary of any portion of the Insurance shall have the right to elect
such settlement option.
10. Named Fiduciary. For purposes of the Employee Retirement Income
---------------
Security Act of 1974 (P.L. 93-406), as amended, the Company is the "named
fiduciary" of the split-dollar life insurance plan for which this Agreement is
hereby designated the written plan instrument.
11. Allocation Of Fiduciary Responsibilities. The Named Fiduciary may
----------------------------------------
allocate its responsibilities for the operation and administration of this
split-dollar life insurance plan, including the designation of persons to carry
out fiduciary responsibilities under such plan. The Named Fiduciary shall effect
such allocation of its responsibilities by delivering to the Company a written
instrument signed by it that specifies the nature and extent of the
responsibilities allocated, including the persons who are designated to carry
out those fiduciary responsibilities under the plan, together with a signed
acknowledgment of their acceptance.
12. Plan Administrator. The Named Fiduciary is hereby designated as the
------------------
"Plan Administrator" of this plan.
13. Amendment. This Agreement may be altered, amended, or modified,
---------
including the addition of any extra policy provisions, by a written agreement
signed by
- 5 -
the Company and the Trust. In addition, either party may assign its rights,
interests and obligations under this Agreement; provided, however, that any
assignment shall be made subject to the terms of this Agreement. The laws of the
State of Texas shall govern the construction and enforceability of this
Agreement.
14. Interpretation. Where appropriate in this Agreement, words used in the
--------------
singular shall include the plural and words used in the masculine shall include
the feminine and vice versa.
15. Miscellaneous. The waiver by either party of a breach of any provision
-------------
hereof will not be deemed a waiver of any succeeding breach of such provision,
or a waiver of the provision itself. The parties will not enter into any
agreement or contract with others that would tend to vary, rescind or abrogate
the provisions hereof, nor shall they hinder or interfere with, or cause to be
interfered with in any manner whatsoever, the operation of the terms of this
Agreement. Each party hereto acknowledges that any breach or attempted breach of
any provision of this Agreement will cause irreparable harm for which there is
no adequate remedy at law, and each party agrees that each of the other parties
hereto shall be entitled to specific performance and injunctive and other
equitable relief in case of any such breach or attempted breach. This Agreement
supersedes all prior agreements between the parties and contains the entire and
only agreement between them relating to the Insurance. This Agreement is
severable and if, for any reason, any provision or provisions hereof are
determined to be invalid, inoperative, or contrary to any existing or future
law, the remainder of this Agreement shall continue to be valid after giving
effect to the intent manifested by the portion held invalid or inoperative. This
Agreement shall be binding upon and inure to the benefit of the parties, their
heirs, legal representatives, successors and assigns.
- 6 -
16. Notices. All notices, requests, demands or other communications
-------
provided for herein shall be in writing and shall be deemed to have been given
when sent by registered or certified mail, return receipt requested, addressed
to the parties at their addresses set forth below or to such other person or
address as a party shall designate to the other parties from time to time in
writing forwarded in like manner:
Company: Trust:
IMCO RECYCLING INC. ▇▇▇▇▇▇ FAMILY INSURANCE TRUST NO. 1
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇. ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇ 2200 ▇▇▇▇ Avenue, #4500E, LB170
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Any party may change such party's address by written notice to all other
parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first hereinabove written.
Trust:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
--------------------
Company:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
--------------------------------
- 7 -
EXHIBIT A
INSURANCE COMPANY FACE AMOUNT
----------------- ------------
Pacific Life $3,000,000
- 8 -
EXHIBIT B
ASSIGNMENT OF LIFE INSURANCE
POLICY AS COLLATERAL
--------------------
A. For Value Received, the undersigned hereby assigns, transfers and sets over
to IMCO RECYCLING INC., a Delaware corporation (herein called the
"Assignee"), a certain interest hereinafter specified in Policy No.
VP60627230 (herein call the "Policy") issued by Pacific Life (herein called
the "Insurer"), upon the life of ▇▇▇ ▇. ▇▇▇▇▇▇, 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 undersigned by this instrument
agrees, and the Assignee by the acceptance of this assignment agrees, to
the conditions and provisions herein set forth. This Assignment is entered
into in accordance with a Split-Dollar Life Insurance Agreement by and
between the Assignee and ▇▇▇▇▇▇ FAMILY INSURANCE TRUST NO. 1 dated the same
date as this Assignment (the "Agreement").
B. It is expressly agreed that the following specific interest in the Policy
(including any dividend accumulations or additions standing to the credit
of the Policy) passed by virtue hereof:
The Assignee shall have an interest in the Policy and any proceeds
becoming payable under the Policy due to death, maturity, policy loan
or surrender of the Policy to the extent of any liability arising
under the Agreement.
C. Except as expressly provided in paragraph D below, it is expressly agreed
that the following specific rights are reserved and excluded from this
assignment and do not pass by virtue hereof:
1. The right to collect from the Insurer any disability benefit payable
in cash that does not reduce the amount of insurance;
2. The right to designate and change the beneficiary;
3. The right to elect any optional mode of settlement permitted by the
Policy or allowed by the Insurer; but any designation or change of
beneficiary or election of a mode of settlement shall be made subject
to this assignment and to the rights of the Assignee hereunder;
4. The right to surrender the Policy or to obtain policy loans from the
Insurer;
- 9 -
5. The right to elect a nonforfeiture provision, to change the
application of dividends or to exercise any other rights privileges
and options available under the terms of the policy to the undersigned
as owner of the Policy; and
6. The right to select investment options with respect to the policy.
D. This assignment is made and the Policy is to be held as collateral security
under the Agreement for any and all liabilities of the undersigned to the
Assignee, either now existing or that may hereafter arise between the
undersigned and the Assignee (all of which liabilities secured or to become
secured are herein called "Liabilities"). It is expressly agreed that all
sums received by the Assignee hereunder, either in the event of death of
the Insured, the maturity or surrender of the Policy, the obtaining of a
loan or advance on the Policy, or otherwise, shall first be applied to the
payment of the Liabilities. In the event that the undersigned is obligated
to pay any amount to the Assignee under the Agreement, the Assignee shall
be entitled to direct payment from the Insurer, and the right to direct the
surrender of the Policy or to obtain policy loans from the Insurer in order
to enforce its rights under the Agreement, upon written notice to the
Insurer.
E. The Assignee covenants and agrees with the undersigned as follows:
1. That any balance of the sums received hereunder from the Insurer
remaining after payment of the then existing Liabilities, matured or
unmatured, shall be paid by the Assignee to the persons entitled
thereto under the terms of the Policy had this assignment not been
executed;
2. That the Assignee will forward to the Insurer, upon request and
without unreasonable delay, the Policy for endorsement of any
designation or change of beneficiary or any election of an optional
mode of settlement.
F. 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, or the validity or the amount of the Liabilities or the
existence of any default herein, or the giving of any notice, or the
application to be made by the Assignee or any amounts to be paid to the
Assignee. The sole receipt of the Assignee for any sums received shall be a
full discharge and release therefor to the Insurer. Checks for the sums
payable under the policy and assigned herein shall be drawn to the
exclusive order of the Assignee if, when, and in such amounts, as may be
requested by the Assignee. The Insurer shall not take any notice of the
- 10 -
terms of any outside agreement or of any restrictions that may be imposed
on the Assignee thereby.
G. The Assignee may take or release other security, may release any party
primarily or secondarily liable for any of the Liabilities, may grant
extensions, renewals or indulgences with respect to the Liabilities, or may
apply to the Liabilities 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 or regarding to other
security.
H. The undersigned declares that no proceedings in bankruptcy are pending
against it and that its property is not subject to any assignment for the
benefit of creditors.
I. It is the intent of the undersigned to assign an interest in proceeds
becoming payable under the Policy as security for certain advances from the
Assignee, without giving the Assignee any incidents of ownership in the
Policy as defined under Section 2042 of the Internal Revenue Code (and
Regulations thereunder) presently in effect, or any successor thereto.
Signed this 1st day of June, 1999.
▇▇▇▇▇▇ FAMILY INSURANCE TRUST NO. 1
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
--------------------
- 11 -
