Exhibit 10.5E
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
REGARDING THE TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY POLICY
THIS AGREEMENT made as of this 8th day of November, 1998, by and among
RECOTON CORPORATION, a New York corporation, having its principal office at 0000
Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Corporation"); XXXXXX X. XXXXXXXXX, residing at 000 Xxxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxx 00000 (hereinafter referred to as "Xxxxxxxxx"); and XXXXXXXX X.
XXXX and XXXXXX XXXXXXXXXX, as Trustees of the XXXXXX AND XXXXX XXXXXXXXX 1993
FAMILY TRUST dated November 5, 1993 (hereinafter referred to as the "Trustees").
WHEREAS, Xxxxxxxxx is employed by the Corporation and has rendered
competent efforts on behalf of the Corporation and the Corporation wishes to
give recognition to Xxxxxxxxx for such efforts; and
WHEREAS, in recognition of the foregoing, the Corporation wishes to
help Xxxxxxxxx provide for the security of his family through participation in a
split-dollar insurance program; and
WHEREAS, Xxxxxxxxx and the Trustees agree to participate in such
program to the extent hereafter provided.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I
APPLICATION FOR LIFE INSURANCE
1. In furtherance of the purposes of this Agreement, the Trustees have
purchased a policy of life insurance insuring Xxxxxxxxx'x life and the life of
his wife Xxxxxxxx Xxxxxxxxx (hereinafter referred to as "Xxxxx") with
Transamerica Occidental Life Insurance Company (hereinafter referred to as "the
Insurer"), in the total face amount of $2,000,000 (hereinafter referred to as
the "Policy"), which is described in Exhibit A attached hereto and by this
reference made a part hereof.
2. The parties hereby agree that the Policy shall be subject to the
terms and conditions of this Agreement.
ARTICLE II
OWNERSHIP OF LIFE INSURANCE
The Trustees, and their successors, 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, without the consent of any other person,
except as may otherwise be provided herein.
ARTICLE III
PAYMENT OF PREMIUMS ON POLICY
1. The Corporation, within a reasonable time after the Insurer under
the policy has issued its notice of premium due, shall notify Xxxxxxxxx and the
Trustees of the exact amount due from the Trustees. If the notice from the
Insurer of premium due is sent to the Trustees, the Trustees shall promptly
deliver a copy thereof to the Corporation. The amount due from the Trustees
shall be an amount equal to the annual cost of the value of the economic benefit
attributable to the insurance protection on the joint lives of Xxxxxxxxx and his
wife Xxxxx, provided by such Policy in accordance with this Agreement, measured
by the lower of (i) the U.S. Life Table 38 (or the corresponding applicable rate
or other measure set forth in any applicable Revenue Ruling or Treasury
Regulation or other Treasury notice), while both are alive and thereafter
measured by the PS 58 Rate, set forth in Revenue Ruling 55-747 (or the
corresponding applicable rate or other measure set forth in any Revenue Ruling
or Treasury Regulation or other Treasury notice modifying or revoking Revenue
Ruling 55-747), or (ii) the Insurer's current published premium rate for
annually renewable term insurance for standard risks. The Trustees shall pay
such required portion of the premium to the Insurer of the Policy on or prior to
the premium due date. If the Trustees fail to make such timely payment, the
Corporation, in its sole and absolute discretion, may elect to make the
Trustees' portion of the premium payment, which payment shall be recovered by
the Corporation as provided herein.
2. On or before the due date of each premium payable on the Policy, or
within the grace period provided therein, the Corporation shall pay to the
Insurer a portion of the premium equal to (a) the gross premium, less (b) the
portion of the premium payable by the Trustees in accordance with the preceding
paragraph 1, and shall, upon request, promptly furnish Xxxxxxxxx and/or the
Trustees evidence of timely payment of such premium.
ARTICLE IV
ELECTION OF DIVIDEND OPTION
The Trustees, as the Owner of the Policy, may elect, in their sole and
absolute discretion, to have all dividends, if any, declared by the Insurer on
the Policy applied:
A. to reduce the premium payable on the Policy; or
B. to purchase paid-up additional insurance on the
life of Xxxxxxxxx and his wife Xxxxx; or
C. to purchase one-year term insurance on the lives
of Xxxxxxxxx and his wife Xxxxx; or
D. for any other purpose allowable by the Policy.
Notwithstanding the foregoing provisions of this Article IV, until this
Agreement has terminated, no such dividend election by the Trustees may be made
if the cash value of the Policy would be reduced below the amount it would
otherwise have been in the absence of such election.
ARTICLE V
COLLECTION AND PAYMENT OF DEATH BENEFIT
1. Within 30 days after the death of the survivor of Xxxxxxxxx and his
wife Xxxxx, the Corporation and the Trustees shall apply to the Insurer for the
death benefit and take all action necessary to obtain such payment. The
Corporation and the Trustees shall cooperate in giving instructions to the
Insurer for the issuance of two checks to bring about the following results. The
proceeds shall be divided into two parts. The First Part shall be an amount
equal to (a) the total amount of the premiums which the Corporation, its
successors and assigns, have paid with respect to the Policy, reduced by (b) any
prior reimbursements therefor. The Second Part, if any, shall be the balance of
the proceeds.
(a) The First Part shall be paid to the Corporation, its
successors or assigns. The parties hereby confirm that in no event shall the
amount payable to the Corporation exceed the Policy proceeds payable as a result
of the maturity of the Policy as a death claim.
(b) The Second Part shall be paid to the beneficiary designated
by the Trustees, or their successors. No portion of the proceeds shall be paid
to the beneficiary designated by the Trustees until the First Part of the
proceeds has been paid fully to the Corporation.
2. The Insurer may rely upon a sworn statement in form satisfactory to
the Insurer furnished by the Corporation, its successors or assigns, as to the
amount of the First Part, and any payment made on account of such statement
shall discharge the Issuer accordingly.
ARTICLE VI
COLLATERAL ASSIGNMENT
1. To secure repayment to the Corporation of the amount of the
premiums on the Policy paid by it, upon maturity of the policy as provided in
the preceding Article V of this Agreement or upon termination of this Agreement
as provided in the succeeding Article VII of this Agreement, the Trustees have
assigned, contemporaneously herewith, the Policy to the Corporation as
collateral. The parties hereby confirm that the Policy shall be subject to the
terms and conditions of the collateral assignment filed with the Insurer
relating to the Policy. The collateral assignment of the Policy to the
Corporation hereunder shall not be terminated, altered or amended by the
Trustees, without the written consent of the Corporation.
2. Except as otherwise provided herein, the Trustees shall not sell,
assign, transfer, borrow against, surrender or cancel the Policy nor change the
beneficiary designation provisions thereof, without the written consent of the
Corporation.
ARTICLE VII
TERMINATION OF AGREEMENT AND OPTION ON TERMINATION
1. This Agreement shall terminate upon the occurrence of any one of
the following events:
(a) The insolvency or dissolution of the Corporation, PROVIDED,
HOWEVER, that under no circumstances shall the creditors of the Corporation have
any claim to the Policy or proceeds thereunder. For the purposes of this
Agreement, the term "insolvency" shall mean (i) the filing of a voluntary
petition in bankruptcy or for an arrangement, reorganization or other relief
from creditors under the Federal Bankruptcy Code or any similar law, (ii) the
appointment of a receiver for a substantial part of the assets of the
Corporation which appointment has not been vacated within 90 days, or (iii) the
failure, within 90 days, to obtain dismissal of any involuntary petition in
bankruptcy or for reorganization filed against the Corporation.
(b) The termination of Xxxxxxxxx'x employment by the Corporation
for cause. For purposes of this Agreement, the term "cause" shall mean willful
malfeasance or the commission of a felony.
(c) The death of the survivor of Xxxxxxxxx and his wife Xxxxx,
subject to the provisions of Article V which shall continue in full force and
effect following the death of Xxxxxxxxx and his wife Xxxxx. The parties hereby
confirm that this Agreement and the respective rights and obligations hereunder
shall continue in full force and effect upon the termination of Xxxxxxxxx'x
employment because of his disability or for any other reason other than for
cause.
(d) Upon (1) payment by the Trustees of the remaining premium
payments due on the Policy or upon an Agreement entered into by the Trustees and
the Corporation under which the Trustees agree to assume payment of such
remaining premiums (either of which the Trustees may do in their sole
discretion) and (2) repayment to the Corporation of an amount equal to the total
amount of the premiums which the Corporation, its successors and assigns, have
paid with respect to the Policy less any prior reimbursements therefor.
2. Upon termination of this Agreement, the obligation of the
Corporation to make payments on account of policy premiums shall cease.
3. For ninety (90) days after termination of this Agreement, the
Trustees shall have the option of obtaining the release of the collateral
assignment of the Policy to the Corporation. To obtain such release, with
respect to termination pursuant to subparagraphs (a), (b) or (c) of paragraph 1
of this Article VII, the Trustees shall repay to the Corporation an amount equal
to the total amount of the premiums which the Corporation, its successors and
assigns, have paid with respect to the Policy. Upon receipt of such amount, or
upon termination pursuant to subparagraph (d) of paragraph 1 of this Article
VII, the Corporation shall release the collateral assignment of the Policy, by
the execution and delivery to the Trustees of an appropriate instrument of
release in form satisfactory to the Insurer and Trustees.
4. If the Trustees fail to exercise the option provided for in the
preceding paragraph 3 of this Article VII, within 90 days after the date of
termination of the Agreement, then, the Corporation may enforce its right to be
repaid an amount equal to the total amount of the premiums which the
Corporation, its successors and assigns, have paid with respect to the Policy;
provided that in the event the cash surrender value of the Policy exceeds the
amount due the Corporation, such excess shall be paid to the Trustees.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
1. This Agreement is governed by the laws of the State of New York.
2. The parties to this Agreement agree that this Agreement is among
the Corporation, Xxxxxxxxx and the Trustees to the exclusion of all other
persons or entities herein mentioned. The filing of copies of this Agreement
with the Insurer in no way operates to make the Insurer a party to this
Agreement, or any modification or amendment hereof. No provision of this
Agreement nor any modification 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 are made a part of the Policy by the collateral assignment executed
by the Trustees and filed with the Insurer in connection herewith. The Insurer
shall be fully discharged from its obligations under the Policy by payment of
the Policy death benefit to the beneficiary named in the Policy, subject to the
terms and conditions of the Policy.
3. This split-dollar insurance plan is a small welfare plan under the
Employment Retirement Security Act of 1974 (ERISA). Under this Act, an employee
has certain rights and protection. His rights are set forth in this Agreement
and in the insurance contracts issued in his name.
In making a claim for benefits, the employee must make his claim on a
form acceptable to the Corporation. The plan administrator will supply him with
the claim forms. The request will set forth the basis of the employee's claim
and authorize the plan administrator and the Corporation to investigate the
claim and take the necessary steps to facilitate payment of benefits.
If the Corporation denies the employee's claim, it must provide him
with the following information in a written reply:
(a) The specific reason or reasons for the denial;
(b) A reference to the specific provisions of the
split-dollar agreement on which the denial is based;
(c) A description of any additional material or information
necessary for him to perfect his claim; and
(d) An explanation of the procedure for review of claims.
Within 60 days of a claim denial from the Corporation, or some later
date that is reasonable, the employee may request in writing a review of the
denied claim by the Corporation.
The employee may, in asking for the review: (a) pertinent documents,
and (b) submit issues and comments in writing.
On receipt of the request for review, the Corporation, as the case may
be, shall promptly, within 60 days, deny or grant the claim. The decision shall
be made in writing and in a manner calculated to be understood by the employee.
It also shall include specific reference to pertinent provisions on which the
denial is based.
After review, if the employee feels he has been improperly denied a
claim for benefits, he has the right to file suit in federal or state court. If
he is successful in his lawsuit, the court may, if it so decides, require the
other party to pay legal costs, including attorney's fees.
4. The parties to this Agreement shall execute such documents as are
necessary to carry out this Agreement.
5. This Agreement may not be amended or revoked, except by an
instrument in writing signed by the parties hereto or their respective
successors or assigns, before a notary and mutually acknowledged expressly
modifying or revoking the provisions hereof.
6. The article headings and numbers and the paragraph numbers are
included herein for convenience only and in no way are to be considered to be a
part of this Agreement.
7. In the event that any provisions of this Agreement shall be held
illegal, unenforceable or in conflict with the laws of New York or the United
States, such provisions shall be deemed separable from the other provisions of
this Agreement and all the other provisions shall continue in full force and
effect.
8. This Agreement and all obligations and covenants hereunder shall
bind the parties hereto, their successors and assigns.
9. Any waiver by a party of any of the provisions of this Agreement or
any right or rights hereunder, shall not be deemed to be a continuing waiver and
shall not prevent or estop such parties from thereafter enforcing such
provisions or rights as to the future and the failure of any party to insist in
one or more instances upon the strict performance of any one or more of the
terms of the provisions of this Agreement by the other parties shall not be
construed as a waiver or relinquishment of any such terms or provisions, but the
same shall continue in full force and effect.
10. Any notice, consent or demand required or permitted under 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. 11.
This Agreement may be executed in three counterparts which together shall
constitute one Agreement with the same effect as if the parties executing the
counterparts had all executed this Agreement as of the day and year first above
written.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
RECOTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
ATTESTED: -----------------------
Stuart Mont
-------------------
Secretary /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
THE XXXXXX AND XXXXX XXXXXXXXX
1993 FAMILY TRUST
DATED NOVEMBER 5, 1993
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx, Trustee
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, Trustee
EXHIBIT A
The following insurance policy is subject to the annexed Agreement:
Transamerica Occidental Life Insurance Company
Policy No. 60032304
RECOTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
ATTESTED:
Stuart Mont
-------------------
Secretary
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
THE XXXXXX AND XXXXX XXXXXXXXX
1993 FAMILY TRUST
DATED NOVEMBER 5, 1993
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Xxxxxxxx X. Xxxx, Trustee
/s/ Xxxxxx Xxxxxxxxxx
--------------------------
Xxxxxx Xxxxxxxxxx, Trustee
