EXHIBIT 10.1
XXXXXX X. XXXXXX
SPLIT DOLLAR INSURANCE AGREEMENT
CONSECO LIFE INSURANCE COMPANY POLICY
NO. 1090545711
THIS SPLIT DOLLAR INSURANCE AGREEMENT is made and entered into the
24th day of September, 1999, by and between XXXX XXXX XXXXXX and XXXXX XXXXXX
XXXXX, and their successors in office, as Co-Trustees of the XXXXXX 1994 FAMILY
TRUST (the "Policy Owner") and NATIONAL HOME CENTERS, INC., an Arkansas
corporation (the "Company"). Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx join in
signing this Agreement in their capacities as Employee and Employee's Spouse.
RECITALS:
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Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx are both valued employees of the
Company. The Policy Owner is a trust created by Employee and Employee's Spouse
for the benefit of descendants of Employee and Employee's Spouse. In order to
provide an incentive to the Employees to continue in the employment of the
Company, and to provide greater financial security for the Employee's family,
the Company desires to assist the Policy Owner in providing life insurance for
the benefit and protection of the Employee's family by the payment of Premiums
in accordance with the terms and conditions of this Agreement. The Policy,
together with the Policy Proceeds, will be collaterally assigned to the Company
for the sole purpose of providing security for repayment of the Premiums paid by
the Company. The parties desire to define and limit the extent of the Company's
security interest in the Policy and the Policy Proceeds to the Secured Amount.
The Policy shall be owned by and legal and equitable title shall be held by the
Policy Owner. The interest of the Company in the Policy and the Policy Proceeds
arising pursuant to the Collateral Assignment shall be limited to that of lien
holder and holder of a security interest.
NOW, THEREFORE, in consideration of the premises and the promises contained
herein, and each intending to be legally bound hereby, the parties agree as
follows:
1. Definitions. For all purposes of this Agreement (including the
RECITALS) and any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), the terms defined in this
Section 1 shall have the following meanings (terms defined in the singular to
have the same meanings when used in the plural, and vice versa, and references
to one gender shall include the other):
"Agreement" means this Split Dollar Life Insurance Agreement, as
the same may be modified, amended, supplemented, restated or extended from time
to time.
"Claimant" has the meaning assigned to such term in Section 9(c)
of this Agreement.
"Collateral Assignment" means that certain Assignment of Policy
for Collateral Security, dated the date hereof, by and from the Policy Owner to
the Company, as the same may be modified, amended, supplemented, restated or
extended from time to time, pursuant to which the Policy Owner assigns the
Policy and the Policy Proceeds to the Company to secure the Policy Owner's
obligation to repay the Secured Amount to the Company.
"Disability" with respect to the Employee means that, as a result
of sickness or injury, Employee
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is unable to perform his material and substantial duties as the senior executive
officer of the Company.
"Employee" means Xxxxx X. Xxxxxx.
"Employee's Spouse" means Xxxxxx X. Xxxxxx.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations issued thereunder
"Insurance Company" means Conseco Life Insurance Company, a stock
company incorporated in the State of Indiana, and its successors and assigns
"Named Fiduciary" means the Company.
"One Year Term Cost" means the portion of each Premium that is
equal to the one-year term cost of the insurance protection being provided
pursuant to the Policy.
"Person" means any individual, joint venture, corporation,
company, limited liability company, voluntary association, partnership, trust,
joint stock company, unincorporated organization, association, government, or
any agency, instrumentality, or political subdivision thereof, or any other form
of entity or organization.
"Plan" has the meaning assigned to such term in Section 9(a) of
this Agreement.
"Plan Administrator" means the company.
"Policy" means the policy or policies of life insurance issued by
the Insurance Company on the life of the Employee and/or the employee's Spouse
and owned by the Policy Owner, together with any and all supplements,
endorsements and amendments thereto, that are made subject to the terms of this
Agreement. The Policy initially issued is Policy No. 1090545711, issued
September 24, 1999, in the principal amount of $20,000,000.
"Policy Anniversary" means any anniversary of the Policy
Effective Date.
"Policy Effective Date" means the effective date of the P6licy as
set forth in the Policy.
"Policy Proceeds" means any and all proceeds of any type of, from
or under the Policy, including, without limitation, (i) the cash surrender value
of the Policy, (ii) any and all proceeds of the Policy payable when it becomes a
claim at death, maturity or otherwise, (iii) any and all proceeds of any loans
or advances on or against the Policy, either from the Insurance Company or, at
any time, other Persons, and (iv) distributions or shares of surplus, dividends,
deposits or additions to the Policy, now or hereafter made thereunder or
apportioned thereto.
"Premium" means any premium payment required to be made under the
terms of the Policy or called for and due under this Agreement.
"Required Payment" means an amount equal to the lesser of the
Secured Amount or the cash surrender value of the Policy.
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"Secured Amount" at any time means the sum of (A) minus (13)
where: (A) is the aggregate sum of all Premiums then or theretofore paid by the
Company to the Insurance Company and credited to the Policy; and (13) is the
aggregate of all amounts then or theretofore paid to the Company pursuant to
Section 6(e) of this Agreement by or on behalf of the Policy Owner as repayment
of all or any portion of the amounts included in (A).
2. Application for Policy. The Policy Owner has applied to the Insurance
Company for the Policy, and with the assistance of the Company, will take all
reasonable steps to cause the Policy to be issued. When the Policy is issued,
the policy number, effective date, face amount and plan of insurance shall be
recorded on Schedule One to be attached hereto, and the Policy shall become
subject to the terms of this Agreement.
3. Ownership of Policy. The Policy shall be owned by and legal and
equitable title shall be held by the Policy Owner. The Company shall have no
legal, equitable or beneficial right, title, or interest in the Policy, except
to the extent of the lien on and security interest in the Policy and the Policy
Proceeds created under the Collateral Assignment. The interest of the Company in
the Policy and the Policy Proceeds shall be limited to that of lienholder and
holder of a security interest.
4. Payment of Premiums; Assignments; Borrowings.
(a) Payment of Premiums. The Policy Owner shall be responsible for
the payment of each Premium. As a matter of convenience to the Policy Owner,
during that period of time in which Xxxxxx X. Xxxxxx is employed by the Company,
and during any additional period described in Section 4(c), the Company may
remit each Premium to the Insurance Company on or before the due date of the
Premium, or within the grace period, if any, allowed by the Policy for the
payment of such Premium. If requested by the Policy Owner, the Company shall
provide proof to the Policy Owner of timely payment of each Premium.
(b) Funding of Premiums. The Policy Owner shall be responsible for
paying the One Year Term Cost, to be remitted to the Insurance Company in behalf
of the Policy Owner. Such amount shall be paid in cash by the Policy Owner to
the company not later than the due date of each Premium, or alternatively and
with the consent of Xxxxxx X. Xxxxxx and the Policy Owner, the Company, prior to
or as of the due date of each Premium, shall deduct from the compensation
otherwise payable to Xxxxxx X. Xxxxxx an amount equal to the One Year Term Cost.
Xxxxxx X. Xxxxxx acknowledges that the amount deducted will be included in her
taxable compensation from the Company. The Company shall advance the balance of
the funds required for the payment of each Premium.
(c) Death or Disability of Employee. If Xxxxxx X. Xxxxxx becomes
Disabled and is survived by Employee, and at the time of her Disability Xxxxxx
X. Xxxxxx was employed by the Company, the Company will continue to pay the
portion of the Premiums it would have paid had Xxxxxx X. Xxxxxx not become
Disabled and remained in the employ of the Company until the first to occur of
(i) the death of Xxxxxx X. Xxxxxx, or (ii) the Tenth Policy Anniversary.
(d) Collateral Assignment. The Policy Owner and the Company shall
execute the Collateral Assignment pursuant to which the Policy Owner will assign
the Policy and the Policy Proceeds to the Company to secure the Policy Owner's
obligation under Section 10 of this Agreement to repay the Secured Amount to the
Company.
5. Company Rights and Restrictions.
(a) Rights as Lienholder. The rights of the Company as collateral
assignee shall be that of a holder of a lien on and security interest in the
Policy and Policy Proceeds, securing the Policy Owner's obligations to the
Company under this Agreement.
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(b) Right to Assign. The Company shall have the right, without the
Policy owner's consent, to assign, pledge, hypothecate or otherwise transfer any
or all of its right, title and interest in, to and under this Agreement, the
Collateral Assignment, the Policy and the Policy Proceeds, absolutely or as
collateral security only, to any Person (any such Person is referred to herein
as a "Permitted Assignee" and any such Person to whom such an assignment or
transfer shall have been so made is referred to herein as an "Assignee"). Any
assignment of this Agreement and the Collateral Assignment shall place the
Assignee in the same position as its predecessor, except to the extent the
assignment provides otherwise. Within ten (10) days of making such an
assignment, the assigning party shall give notice of such assignment to the
Policy Owner and, if the Insurance Company is not the Assignee, to the Insurance
Company; provided that, the failure to do so shall not limit or impair the
rights or remedies of the Company or any Assignee under this Agreement or the
Collateral Assignment or the rights or remedies of any Assignee under any such
assignment. The Policy Owner agrees to treat any Assignee the same as if this
Agreement and the Collateral Assignment were made between the Policy Owner and
such Assignee insofar as the Assignee's rights in the Policy and the Policy
Proceeds are concerned. An assignment by the Company will not terminate the
Company's obligation under Section 4(1)) to pay a portion of the Premium. No
assignment shall be binding upon the Insurance Company until the notice required
by this Section 5(1)) is given to the Insurance Company. Neither the Company nor
any Assignee shall have the right to borrow against the Policy.
(c) Right to Repayment. Subject to the limitations of Section 10 of
this Agreement, upon the termination of this Agreement the Company shall have
the right to repayment by the Policy Owner of the aggregate of all Premiums paid
by the Company pursuant to this Agreement (to the extent that the Policy Owner
has not repaid such Premiums and amounts to the Company prior to such
termination).
(d) Restrictions on Actions Taken. The Company shall not take any
action that might endanger the interests and rights of the Policy Owner in the
Policy, subject, however, to the Company's right to exercise any right, power or
remedy available to it hereunder or under the Collateral Assignment for the
enforcement of the Policy Owner's obligations hereunder and thereunder.
6. Rights of Policy Owner. Subject to the provisions of this Agreement
and the Collateral Agreement, the Policy owner shall possess all rights in the
Policy, including, but not limited to, the following:
(a) the right to surrender the Policy and receive the cash surrender
value;
(b) the right to designate and change the beneficiary (or
beneficiaries) of the Policy;
(c) the right to select optional methods of settlement with regard to
the death benefit provided for in the Policy, subject to the provisions of
Section 8 of this Agreement;
(d) the right to effect a partial surrender of or partial withdrawal
from the Policy or to borrow from the Insurance Company on the Policy to the
extent (and only to the extent) that the cash surrender value exceeds the
Secured Amount. In no event, however, shall the Policy Owner take any action,
including borrowing from the Policy, which will cause the cash surrender value
of the Policy to fall below the Secured Amount. The Insurance Company shall
administer any Policy loans pursuant to the terms of the Policy. In the event
that a Policy loan is made pursuant to the Policy and this Section 6(d), any
interest charges on such loan which are unpaid when due shall be added to the
outstanding indebtedness of the Policy loan account of the Policy Owner;
provided that, no addition of any unpaid interest shall be made which shall
cause the cash surrender value of the
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Policy to fall below the Secured Amount. In no event shall an interest payment
or loan repayment constitute a premium payment;
(e) the right from time to time to repay the Company, prior to the
termination of this Agreement, the aggregate amount of the portion of all
Premiums paid by the Company pursuant to this Agreement not previously repaid
plus all amounts required to be repaid by the Policy Owner pursuant to the
Collateral Assignment; provided, however, to the extent the interest of the
Company as a holder of a lien on and security interest in the Policy and Policy
Proceeds hereunder or under the Collateral Assignment shall have been assigned
to a Permitted Assignee, such repayment shall be made to the Assignee, to the
extent of the Assignee's interest therein, if notice of the Assignment shall
have been given to the Policy Owner.
(f) all other rights contained in the Policy.
7. Surrender of Policy. In the event the Policy is surrendered, the
Policy Owner shall be entitled to' receive the cash surrender value as defined
in the Policy, subject to the Company's lien on and security interest in the
Policy and Policy Proceeds under the Collateral Assignment and the obligation of
the Policy Owner to repay the Secured Amount in accordance with Section 10 of
this Agreement. The sole and exclusive right to surrender the Policy is vested
in the Policy Owner.
8. Death Claims Under the Policy. Provided that the Policy Owner shall
not have theretofore satisfied his obligations under Section 10 of this
Agreement to repay the Secured Amount, the Policy owner hereby directs the
Insurance Company, upon written demand therefor by the Company (or its Assignee)
following the death of the survivor of the Employee and the Employee's Spouse
(which demand shall constitute the Company's certification, on which the
Insurance Company may conclusively rely, that such obligations have not been
theretofore satisfied), to pay to the Company (or its Assignee) from the Policy
Proceeds an amount equal to the Secured Amount, notwithstanding the settlement
option selected by the Policy owner under the Policy;
9. ERISA Requirements.
(a) Named Fiduciaries. For purposes of ERISA, the Company will
be the Named Fiduciary and Plan Administrator with respect to the plan of split
dollar life insurance provided for under this Agreement. This plan of split
dollar life insurance (the "Plan") is intended to qualify as a life insurance
employee benefit plan as described in Revenue Ruling 64-328.
This Agreement shall constitute the written plan instrument required by ERISA.
The Company shall be responsible for the general administration, operation and
interpretation of the Plan and for carrying out its provisions, except to the
extent all or any such obligations specifically are imposed on another person or
persons or entity. The Company may engage an actuary, attorney, accountant,
insurance company or similar entity, consultant or any other technical advisor
on matters regarding the operation of the Plan and to assist in the
administration of the Plan, and to perform such other duties as are required in
connection therewith. The Company may allocate its responsibilities for the
operation and administration of the Plan, including the designation of persons
who are not named fiduciaries to carry out fiduciary responsibilities under the
Plan. The Company shall effect such allocation of its responsibilities by
adopting resolutions specifying the nature and extent of the responsibilities
allocated; including, if appropriate, the persons who are not named fiduciaries,
but who are designated to carry out fiduciary responsibilities under the Plan.
Subject to the claims procedures set forth in Section 9(c) hereof, and except as
otherwise provided in this Section 9, the Company shall have the duty and
discretionary authority to interpret and construe the provisions of the Plan and
decide any dispute which may arise regarding the rights of the Policy Owner.
Determinations by the Company shall
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be binding and conclusive upon all interested persons. The Plan shall be
administered and the records of the Plan shall be maintained on the basis of the
plan year. The plan year shall be the twelve month period ending on December 31
of each year.
(b) Funding Policy. All premiums due on the Policy shall be
remitted to the Insurance Company when due. The benefits provided by the Policy
shall be paid by the Insurance Company in accordance with the terms of the
Policy. The payment of such benefits is predicated on the payment of the
required premiums.
(c) Claims and Review Procedures. The following claims procedure
shall apply for purposes of this Agreement. The claims procedure in subparagraph
(c)(l) below shall be followed with respect to benefits provided by the
Insurance Company under the terms of the Policy. The claims procedure in
subparagraph (c)(2) below shall be followed with respect to benefits, if any,
provided directly by the Company. The Policy Owner, the Policy Owner's heirs,
successors, beneficiaries or personal representatives (individually or
collectively, "Claimant") must follow both procedures, if necessary.
(1) Filing a Claim for Insurance Benefits. A Claimant shall make a claim
for benefits provided by the Insurance Company by submitting a written
claim and proof of claim to the Insurance Company in accordance with
procedures and guidelines established from time to time by the Insurance
Company. On written request, the Plan Administrator shall provide copies
of any claim forms or instructions, or advise the Claimant how to obtain
such forms or instructions. The Insurance Company shall decide whether the
claim shall be allowed. If a claim is denied in whole or in part, the
Insurance Company shall notify the Claimant and explain the procedure for
reviewing a denied claim.
(2) Filing a Claim for Any Other Benefit. The following claims procedure
shall apply with respect to all benefits other than those provided by the
Insurance Company.
(A) Filing a Claim: Notification to Claimant of Decision: The
Claimant shall make a claim in writing in accordance with procedures
and guidelines established from time to time by the Plan
Administrator, which claim shall be delivered to the Plan
Administrator. The Plan Administrator shall review and make the
decision with respect to any claim. If a claim is denied in whole or
in part, written notice thereof shall be furnished to the Claimant
within thirty (30) days after the claim has been filed. Such notice
shall set forth:
(i) the specific reason or reasons for the denial;
(ii) specific reference to the provisions of this Agreement or
the Collateral Assignment on which denial is based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect a claim and an
explanation of why such material or information is
necessary; and
(iv) an explanation of the procedure for review of the denied
claim.
(B) Procedure for Review. Any Claimant whose claim has been
denied in full or in any part may individually, or through the Claimant's duly
authorized representative, request a review of the claim
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denial by delivering a written application for review to the Plan Administrator
at any time within sixty (60) days after receipt by the Claimant of written
notice of the denial of the claim. Such request shall set forth in reasonable
detail:
(i) the grounds upon which the request for review is based and
any facts in support thereof; and
(ii) any issues or comments which the Claimant considers
pertinent to his claim.
Following such request for review, the Plan Administrator fully and fairly
shall review the decision denying the claim. Prior to the decision of the
Plan Administrator, the Claimant shall be given an opportunity to review
pertinent documents.
(C) Decision on Review: A decision on the review of a claim denied in
whole or in part shall be made in the following manner:
(i) The decision on review shall be made by the Plan
Administrator, which shall consider the application and any written
materials submitted by the Claimant in connection therewith. The Plan
Administrator, in its sole discretion, may require the Claimant to submit
such additional documents or evidence, as the Plan Administrator may deem
necessary or advisable in making such review.
(ii) The Plan Administrator will render a decision upon a review
of a denied claim within sixty (60) days after receipt of a request for
review. If special circumstances (such as the need to hold a hearing on any
matter pertaining to the denied claim) warrant additional time, the
decision will be rendered as soon as possible, but not later than one
hundred twenty (120) days after receipt of a request for review. Written
notice of any such extension will be furnished to the Claimant prior to the
commencement of the extension.
(iii) 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, and the specific references to the
provisions of this Agreement or to the Collateral Assignment on which the
decision is based. The decision of the Plan Administrator on review shall
be final and conclusive upon all persons. If the decision on review is not
furnished to the Claimant within the time limits prescribed in subparagraph
(ii) above, the claim will be deemed denied on review.
10. Termination and Repayment. This Agreement shall terminate upon the
occurrence of any of the following events:
(a) surrender of the Policy by the Policy Owner;
(b) on or after the Tenth Policy Anniversary, upon thirty (30) days
notice of termination by either the Company or the Policy Owner to the other
party, such notice to be given in accordance with the provisions of Section 18
of this Agreement;
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(c) termination of the Employee's employment with the Company for any
reason other than death or Disability of the Employee;
(d) the bankruptcy (voluntary or involuntary) of the Company;
(e) the occurrence of a "Default" as defined and specified in Section
11 of the Collateral Assignment; or
(f) the death of the Employee and the Employee's Spouse.
Subject to the limitations of this Section 10 and Section 8 hereof, the Policy
Owner shall, and hereby agrees to, repay to the Company on the termination of
this Agreement the aggregate amount of all Premiums paid by the Company (to the
extent that the Policy Owner has not paid such Premiums to the Company prior to
such termination). Upon termination of this Agreement as a result of any one of
the events described in Section 10, the Policy Owner shall satisfy such
repayment obligation as follows: (x) by directing the Insurance Company (and the
Policy Owner hereby directs the Insurance Company, without the necessity of any
further direction) to pay, upon written demand therefor, the Required Payment to
the Company (or the then current Assignee) from the Policy Proceeds (including
the cash surrender value of the Policy) or (y) in the Policy Owner's discretion,
by transferring ownership of the Policy to the Company (or such Assignee). In
the case of any termination of this Agreement, in the event the cash surrender
value of the Policy (or, if the same shall have been paid by the Insurance
Company in accordance with the foregoing provisions, the amount of the Required
Payment) at the time of termination shall be less than the Secured Amount, then,
notwithstanding anything herein to the contrary, the Policy Owner shall not be
liable to the Company (or its Assignee) for the payment of the remaining balance
of the Secured Amount or any other amount hereunder.
11. Actions of Insurance Company. The Insurance Company shall not be
deemed to be a party to this Agreement for any purpose nor in any way be
responsible for its validity. Any payments made or action taken by the Insurance
Company in accordance with the provisions of the Policy, this Agreement or the
Collateral Assignment shall fully discharge the Insurance Company from all
claims, suits and demands of all persons whatsoever.
12. Heirs and Assigns. This Agreement shall inure to the benefit of and
bind the heirs, legal representatives, successors and assigns of the parties
hereto.
13. Recitals. The Recitals to this Agreement are incorporated herein and
shall constitute an integral part of this Agreement.
14. Amendment of Agreement. None of the terms and provisions of this
Agreement or of the Collateral Assignment may be waived, limited or amended
except by written agreement, signed by both the Policy Owner and the Company.
15. Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Arkansas, without regard to choice of law or conflict of
law principles, except to the extent such laws shall be superseded by the
provisions of ERISA or other applicable federal laws.
16. Company Not Liable. Although the Company, by this Agreement, is
assisting the Policy Owner in obtaining certain life insurance coverage, the
Company is not responsible for paying any life insurance benefits which are not
paid by the Insurance Company, whether such nonpayment is caused by refusal of
the Insurance
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Company to pay by virtue of a legal reason for nonpayment (such as, but not by
way of limitation, suicide or fraud in the inducement), inability of the
Insurance Company to pay, or any other reason.
17. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
18. Notices. All notices, requests and other communications to any party
under this Agreement shall be in writing (including telefacsimile transmission
or similar writing) and shall be given to such party at its address or
telefacsimile number set forth below or such other address or telefacsimile
number as such party may hereafter specify for the purpose of notice to the
other party and a copy of any such notice, request or communication shall be
sent to the Insurance Company at its address or telefacsimile number set forth
below or such other address or telefacsimile number as the Insurance Company may
specify to the parties:
(a) If to Policy Owner:
The Xxxxxx 1994 Family Trust
Attention: Xxxx Xxxx Xxxxxx and
Xxxxx Xxxxxx Xxxxx, Co-Trustees
Highway 265 North
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Fax Number: 501/000-0000
(b) If to Company:
National Home Centers, Inc.
Xxxxxxx 000 Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: President
Fax Number: 501/000-0000
(c) If to Insurance Company:
Conseco Life Insurance Comp
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
Each such notice, request or other communication shall be effective (i) if given
by mail, 48 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (ii) if given by any other
means, when delivered at the address specified in this Section 18.
19. Headings. Section headings herein are for the convenience of reference
only and shall not affect the construction or interpretation of or alter or
modify the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the year and day first
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above written.
COMPANY,
NATIONAL HOME CENTERS, INC.
By:
-----------------------------------
Xxxxx X. Xxxxxx, Chairman, CEO
By:
-----------------------------------
Xxxxx X. Xxxxxxxxxx, President, COO
POLICY OWNER:
THE XXXXXX 1994 FAMILY TRUST
By:
-----------------------------------
Xxxx Xxxx Xxxxxx, Co-Trustee
By:
-----------------------------------
Xxxxx Xxxxxx Xxxxx, Co-Trustee
-----------------------------------
Xxxxx X. Xxxxxx, Employee
-----------------------------------
Xxxxxx X. Xxxxxx, Employee's Spouse
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