EXHIBIT 10-h
SEVERANCE AGREEMENT
-------------------
AGREEMENT made this 11th day of November, 1997, by and between XXXXX
LABS, INC. (the "Company") and XXXX XXXXX ("Xxxxx").
Background:
Xxxxx commenced employment with the Company upon the inception of the
Company and from that time to this date, Xxxxx, inter alia, has been a Director,
Chairman of the Board, President and Chief Executive Officer of Xxxxx Labs,
Inc., a Utah corporation, and by reason of such role, has been a Director and
President of Xxxxx Labs International, Inc., a Nevada corporation, and Xxxxx
Labs International, Inc., a Delaware corporation. The within Severance Agreement
shall affect Xxxxx as a Director, Chairman of the Board, President and Chief
Executive Officer of Xxxxx Labs, Inc. and a Director and President of both the
Nevada and Delaware corporations (hereinafter collectively, the "Company").
Xxxxx has submitted his resignation as a Director and consequently as
Chairman of the Board, President and Chief Executive Officer of Xxxxx Labs,
Inc., and also by that means, as a Director and as President of the Nevada and
Delaware corporations, (hereinafter "Resignation"), and therefore Company and
Xxxxx, intending to be legally bound hereby, agree to the following terms
respecting Xxxxx'x Resignation:
1. Resignation. Xxxxx agrees and confirms that, effective as stated
below, he has voluntarily resigned from all roles heretofore held with the
Company. The Company has agreed to accept such Resignation, and the Company
waives any notice requirement otherwise binding on Xxxxx with respect to such
Resignation. Accordingly, as of October 28, 1997, Xxxxx'x duties as President,
Chief Executive Officer, Director and Chairman of the Board ceased, and October
31, 1997 will be Xxxxx'x last day of active employment with the Company. Xxxxx
has executed and delivered his resignation as President, Chief Executive
Officer, Director and Chairman of the Board of Xxxxx Labs, Inc. and as a
Director and President of both the Nevada and Delaware corporate affiliates of
the Company, the original of which has been submitted to Xxxx X. Xxxxxxx, Vice
Chairman of the Board., and a copy of which is attached as Exhibit "A" to this
Severance Agreement, made a part hereof and incorporated herein
2. Severance Payment. The Company has agreed to provide Xxxxx with a
severance payment, as an Employee of the Company, recognizing his service to the
Company, pursuant to which the Company will make payments equal to Xxxxx'x
current fixed base salary of Twenty Thousand Eight Hundred Thirty-Three Dollars
and Thirty-Three Cents ($20,833.33) per month, for and during the period of
November 3, 1997 to and including the week ending May 5, 2000. In addition,
Xxxxx shall be provided with the same medical benefits to which all employees of
the Company are entitled from time to time, currently: medical - Oxford Health;
and Dental Guardian (the "Fringe Benefits").
In the event Company takes such action as will prevent Company from providing
such Fringe Benefits to Xxxxx, then, and in that event, the Company shall make
monthly payments to Xxxxx, in addition to the fixed base salary as aforesaid,
equal to the most recent cost to the Company, for providing the Fringe Benefits
to its employees generally, prior to the termination of operations of Company.
Further, in the event Xxxxx becomes employed by another employer during this
thirty (30) month period, Xxxxx'x right to receive the fixed base salary and
Fringe Benefits shall not terminate, but if Xxxxx is entitled to benefits from
his new employer which are at least equal to those provided by Company, then at
the time that Xxxxx becomes eligible to receive these benefits, Xxxxx will no
longer be entitled to receive the Fringe Benefits from the Company that are
provided to Xxxxx by the new employer. During the period of time during which
Xxxxx is entitled to said severance payments, Xxxxx shall receive his fixed base
salary in bi-weekly installments until the termination thereof as is set forth
hereinabove. Company, at Xxxxx'x option, shall place a sum equal to the
remaining severance payments in escrow, and make regular payments from said
escrow account thereafter if (i) the Company terminates operations and
liquidates its assets or (ii) if the Company merges into another company. Xxxxx
shall neither be required nor permitted to (i) have any active duties or
responsibilities to the Company whatsoever; (ii) report to the Company during
the severance payment period; (iii) have or maintain any office at the Company;
or (iv) engage in any action or make any statement relating to the policies,
management or business of the Company or which Xxxxx knows or reasonably should
know would be harmful to the Company. The Company agrees not to make any
disparaging statements regarding Xxxxx.
3. Stock Options. Attached hereto, made a part hereof, and marked
Exhibit "B" is a Schedule of Xxxxx'x Stock Options to purchase the common stock
of the Company. Xxxxx and the Company agree that Xxxxx will be deemed fully
vested, at the price set forth, with respect to those stock options reflected on
Exhibit "B". Said stock options are and shall remain exercisable by Xxxxx from
the date hereof through to and including ninety (90) days after May 5, 2000,
notwithstanding any contrary provisions of the vesting schedule of the Company
Stock Option Plan or any option grant.
4. Assignment, Nondisclosure and Non-solicitation. Xxxxx and the Company
confirm that Exhibit "C" (in which the Company was inadvertently described as
"Xxxxx Laboratories, Inc"., a "Pennsylvania" corporation) attached hereto is a
true and correct copy of the Patent Assignment and Nondisclosure Agreement
executed on October 26, 1984 and that such Assignment and Agreement is a legally
binding contract. In addition, Xxxxx agrees that to and including the week
ending May 5, 2000, he will neither directly or indirectly own, manage, operate
or control a company or entity; or be employed or retained by a company or
entity which produces, manufactures, sells or otherwise deals in products which
compete directly with products now or previously designed, manufactured or sold
by the Company, or with any PC graphics chip set products now under development
by the Company, including without limitation products that are the same as or
similar to the partially completed designs for the ET 8000 and ET 9000,
provided, however, that Xxxxx shall be relieved from the within provision in the
event (i) the Company no longer engages in the graphics business and has not
theretofore sold the graphics business; or (ii) Xxxxx waives any further claim
to severance payments. Xxxxx
acknowledges that a breach of Exhibit "C" or the promise respecting competition,
will cause substantial harm to the Company, notwithstanding proof of damages,
and accordingly Company shall be entitled to injunctive relief. Xxxxx also
acknowledges and agrees that all employees of Company are subject to patent
assignment, non-disclosure, and non-competition agreements and he agrees to
neither solicit nor hire any employee or former employee of the Company who, to
his knowledge, is a party to any such patent assignment, non-disclosure, and
non-competition agreements or similar agreement that legally prohibits such
employment
5. Return of Company Confidential Information, Property, Keys and Credit
Cards. Excluding only Xxxxx'x personal records and copies of Director's Minutes
or communications with Directors, which Xxxxx maintained in connection with this
service as a Director of the Company, Xxxxx agrees to promptly return to the
Company, retaining no copies thereof, (i) any and all confidential information
of any nature in any form which is in Xxxxx'x possession or control, including,
but not limited to, electronic and paper forms of schematics, netlists, software
source code, software object and executable code, technical specifications,
product specifications, data books, hardware HDL and verilog source code,
functional and production test vectors, product test results, algorithm
specifications and descriptions, and functional test bench verilog and software
source code, as well as any record of communications between Xxxxx and any
employee, officer, director or third party in any manner involving the operation
of the Company, its development of technology, the improvement of technology or
in any way related to the technology of the Company, as well as any other
confidential information, proprietary secrets and trade secrets of the Company,
in whatever type of tangible or intangible form contained, (ii) any and all keys
to the Company's offices in his possession or control, (iii) credit cards issued
to Xxxxx in the name of the Company, as well as (iv) any other property or thing
which was created or developed by Xxxxx or any other person or entity on behalf
of, for, or pursuant to Company's work or purposes.
6. Company Property or Accounts. Notwithstanding the Company records,
Company and Xxxxx agree that if the employee loan account for Xxxxx reflects a
balance due to the Company or a balance due to Xxxxx, the Company and Xxxxx
each, as to the other, and in any contingency, waive any claim to be paid
therefore. With the exception of a Toshiba laptop computer, Xxxxx represents
that he has no stand-alone computer equipment of the Company in his possession.
Xxxxx agrees to remove any design tools licensed to the Company which is
evidenced by a "key" and return the key to the Company and to remove any
software licensed to the Company, in each case from any equipment in his
possession.
7. Split Dollar Insurance. Xxxxx acknowledges that he and Company
entered into a split dollar funded insurance plan to provide insurance for Xxxxx
and that this insurance is owned by an irrevocable trust created by Xxxxx. Xxxxx
further acknowledges that in connection with such split dollar life insurance
plan a Collateral Assignment Agreement was executed by the Trustees of the said
irrevocable trust, a copy of which is attached hereto as Exhibit "D", and made a
part hereof. As respects said split dollar funded insurance plan, the parties
agree as follows:
a. Since Xxxxx has resigned from employment with Company, the
parties agree that such Resignation is deemed, as of the date of this Severance
Agreement to be a termination of employment as that term is defined in the
Collateral Assignment Agreement. Accordingly, Xxxxx shall have ninety (90) days
within which to pay or cause the payment, to the Company of the total of all
premium loans made by the company to date, which sum is agreed to be Five
Hundred Four Thousand Four Hundred Sixty-Four Dollars ($504,464.00) (the
"Aggregate Premium Loan Sum"), in order to secure Company's release of the
Collateral Assignment Agreement with respect to the policy or policies of
insurance covered by the said split dollar insurance plan. The parties further
agree that in the absence of such repayment in full, Company shall exercise its
rights under the Collateral Assignment Agreement to collect such of the cash
surrender value of such policy or policies as may be necessary to pay the
balance due on the Aggregate Premium Loan Sum. In the event that such cash
surrender value is not sufficient to pay the Aggregate Premium Loan Sum in full,
the balance still owed shall continue to be due and payable. The parties further
acknowledge and agree that an annual premium payment for the insurance in
question shall come due during the aforementioned ninety (90) day period, but
that Xxxxx is no longer deemed to be an employee of Company, so that such
premium payment shall be the sole responsibility of Xxxxx and/or the said
irrevocable trust, if he intends to maintain such insurance in force. Notice
from Xxxxx of Xxxxx'x intentions respecting this matter shall be given to
Company fifteen (15) business days prior to the due date of the annual premium
payment, provided, nevertheless that:
b. Subject to the Company's reasonable satisfaction of the
following conditions, the Company shall advance during the first week of
December, 1997, the One Hundred Thirty-Two Thousand Dollar ($132,000) annual
premium payment to come due during the aforementioned ninety (90) day period,
and if advanced, the sum of Six Hundred Thirty-Six Thousand Four Hundred
Sixty-Four Dollars ($636,464) shall thereafter be deemed the Amended Premium
Loan Sum, if
i. Upon making said payment, the insurance carrier shall
permit without limitation, and the Company shall borrow from the policies, the
amended premium loan sum;
ii. The Company thereafter have no legal obligation to
repay said loan; and
iii. Xxxxx shall agree to defend, indemnify and hold
Company harmless from and against any claim by the insurance company, the
trustees or any other party.
8. Health Benefits, 401K Savings Plan, Disability Insurance, Life
Insurance and AD&D Insurance. In the event the Company continues to provide
health benefits as provided hereinabove, after the fifth day of May, 2000,
health benefits can continue at Xxxxx'x expense under COBRA law. Xxxxx'x monthly
coverage cost (subject to change) is Medical and Prescription ($421.90) and
Dental ($60.57) or a total of Four Hundred Eighty-Two Dollars and Forty-Seven
Cents ($482.47) for all. To continue coverage under COBRA, Xxxxx must elect to
do so within sixty (60) days of the fifth day of May, 2000 by the completion and
delivery to Company of an election form which will be provided to Xxxxx. If
Xxxxx elects COBRA coverage, it will nevertheless terminate the earliest of the
following: (a) at the end of eighteen months; (b) the date the group health plan
terminates for all employees; (c) the date Xxxxx fails to make a premium
payment; (d) the date Xxxxx becomes covered under another health plan; or (e)
the date Xxxxx become eligible for Medicare. Xxxxx should review this matter
with the Company so any COBRA benefits to which Xxxxx is entitled may be
retained.
Xxxxx'x participation in the 401(k) savings plan, short-term and
long-term disability insurance, basic life insurance and AD&D insurance (subject
nevertheless to the provisions of paragraph 7 herein) terminates effective
today.
9. Future Relationship. Company and Xxxxx both acknowledge that the
within action has been taken by Xxxxx, and has been accepted by Company,
inasmuch as Xxxxx desires to work on projects which are not planned by the
Company, but Company recognizes that Xxxxx is a skilled and valuable member of
the video graphics field and Company and Xxxxx agree that the terms of this
Severance Agreement are such that the possibility of a future relationship
respecting consulting by Xxxxx for the Company, under terms and conditions that
would be mutually satisfactory to both parties, is not deemed remote. The
Company and Xxxxx further acknowledge that the within actions have been taken
with their understanding of and agreement that, following the resignations
referred to in paragraph 1 above and the execution of this Agreement, Xxxxx does
not have the power to direct or cause the direction of the Company's management
or policies whether through stock ownership or otherwise and that no
relationship which would result in Xxxxx obtaining such power is contemplated,
or will be entered into in the future, by Xxxxx and the Company
Consistent with Xxxxx'x and the Company's understanding of Xxxxx'x
passive role relative to the policies and management of the Company, Xxxxx
agrees to vote, or authorize a person designated by the Company's Board of
Directors to vote, all shares of common stock of the Company over which Xxxxx
has voting power as of the record date of any meeting of shareholders of the
Company in proportion to the votes of all other shareholders of the Company cast
at such meeting. Xxxxx further agrees that he will not authorize any other
person to vote such shares in a manner inconsistent with his agreement herein,
provided that nothing herein shall prevent Xxxxx from selling or otherwise
disposing of any shares of the Company's common stock which he now owns, subject
to any restrictions under the applicable securities laws.
10. General Release. Xxxxx agrees to execute the General Release
attached to this Agreement as Exhibit "E". Xxxxx acknowledges that his execution
of this Agreement and the attached General Release waives his right to challenge
the termination of his
employment by means of his Resignation from the Company and his right to pursue
related legal rights and claims. Xxxxx acknowledges that Xxxxx has obtained
independent legal counsel to advise him in connection with this Severance
Agreement, and that he has carefully considered the provisions of this Agreement
before signing it. If this Agreement and the General Release are not agreed upon
and executed by Xxxxx within twenty-one (21) days from the date of receipt of
this Agreement, or if Xxxxx revokes the General Release within the seven (7) day
period after his execution by notice to Xxxx X. Xxxxxxx this Agreement shall be
deemed null and void and of no further force or effect. The Company may withhold
any payments required to be paid to Xxxxx under this Agreement until the
expiration of such seven (7) day revocation period. Upon the expiration of the
seven (7) day revocation period, the General Release as well as this Agreement
shall be irrevocable and shall be fully binding on the parties in accordance
with all the terms and conditions herein.
11. Miscellaneous.
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a. This Agreement, and the exhibits attached hereto, is the sole
surviving agreement between the parties, and constitutes the entire agreement of
the parties with respect to the subject matter hereof.
b. This Agreement shall be interpreted and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
c. This Agreement shall not be modified or amended except by an
Agreement in writing signed by the parties to this Agreement
d. The terms of the within Severance Agreement shall be deemed
confidential, subject nevertheless to the Company's obligation to disclose the
terms hereof pursuant to any filing requirements.
e. No part of the within Agreement shall be assignable or
pledged, provided that all of the benefits of this Agreement shall inure to the
benefit of, and this Agreement shall be enforceable to that extent by Xxxxx'x
heirs and personal representatives.
f. In the event any provision of this Severance Agreement is
determined to be invalid, inoperative or unenforceable by any court of competent
jurisdiction, the said provision only shall be deemed ineffective, without
invalidating the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement this 11th day of
November, 1997.
XXXXX LABS, INC.
/s/XXXX X. XXXXXXX
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/s/XXXX XXXXX
--------------------------
Xxxx Xxxxx
CONSENT
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Xxxxx Xxxx Xxxxx and Xxxxx Xxxx, Trustees under the "Xxxx Xxxxx and Xxx
Xxxxx Irrevocable Trust" under date of October 11, 1993, respecting Equitable
Variable Life Insurance Company Policies Number 43-262517 and 43-262618, the
insured of which is Xxxx Xxxxx, the owner of which is "Xxxx Xxxxx and Xxx Xxxxx
Irrevocable Trust", as said Trustees, hereby consent to the terms and provisions
of Paragraph 7 of the within Agreement, acknowledging and agreeing that Exhibit
"D" is a true and correct copy of the Collateral Assignment Agreement and that
the Aggregate Premium Loan Sum is true, correct and accepted.
-------------------------- ---------------------------
Witness Xxxxx Xxxx Xxxxx, Trustee
-------------------------- ---------------------------
Witness Xxxxx Xxxx, Trustee
EXHIBIT " A"
RESIGNATION
-----------
To: The Directors, Xxxxx Labs, Inc.
Xxxxxxx, XX 00000
Please accept my resignation effective this date as Chairman of the
Board, Director, President and Chief Executive Officer of Xxxxx Labs, Inc.; and,
as Director and President of Xxxxx Labs International, Inc., a Nevada
corporation and Xxxxx Labs International, Inc., a Delaware corporation.
/s/XXXX XXXXX
-------------------------------
Xxxx Xxxxx
Date: October 31, 1997
EXHIBIT "B"
STOCK OPTIONS
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Original Recast
-------- ------
Shares Date Vested Price Shares Vested Price
------ ---- ------ ----- ------ ------ -----
150,000 11/08/95 01/07/96 $7.875 131,668 08/31/97 $2.9375
25,000 01/16/96 01/15/96 $8.75 21,944 08/31/97 $2.9375
EXHIBIT "C"
PATENT ASSIGNMENT AND
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NON-DISCLOSURE AGREEMENT
------------------------
THIS AGREEMENT is made by and between XXXXX LABORATORIES, INC. a corporation of
the state of Pennsylvania having a place of business at 000 Xxxxxxxx Xxx,
Xxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as "XXXXX") and Xxxx Xxxxx
residing at 000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 (hereinafter referred to as
EMPLOYEE)
WHEREAS, EMPLOYEE has been hired by XXXXX in a position which has varied
responsibilities including the understanding of, testing or improvement of
existing products of XXXXX and/or development of new products; and
WHEREAS, the parties desire to reduce to writing the patent assignment and
non-disclosure aspects of the employment relationship to writing.
NOW, THEREFORE, in and for the consideration of One Dollar ($1.00), the receipt
of which is hereby acknowledged and in further consideration of the employment
of EMPLOYEE by XXXXX, EMPLOYEE agrees as follows:
(1) He or she will promptly and fully disclose to XXXXX any and all
inventions, discoveries and improvements made by him or her
pertaining to or useful in the business of XXXXX during his or her
period of employment by XXXXX and any improvements on his or her
inventions and discoveries made, conceived or acquired by him or her
for one year after the termination of employment, whether made or
conceived solely or jointly with others, during regular business
hours; said inventions, discoveries or improvements shall become and
remain the property of XXXXX whether or not patent applications are
filed thereon;
Employee, however, shall not be responsible to XXXXX if inventions,
which are not directly plug compatible and/or competitive to XXXXX'X
products, made or conceived solely or jointly with others at
locations outside of XXXXX and, during non-business hours; said
inventions, discoveries, or improvements shall become and remain the
property of EMPLOYEE whether or not patent applications are filed
thereon.
(2) EMPLOYEE will from time to time, upon request and at the expense of
XXXXX make application through the attorneys for XXXXX for Letters
Patent of the United States, and any and all countries foreign
thereto on said inventions, discoveries or improvements, and assign
and transfer all said applications, inventions, discoveries and
improvements to XXXXX or its nominee forthwith and without further
consideration; and
(3) EMPLOYEE will from time to time, upon request of XXXXX execute all
papers and do all other things that may be reasonably required in
order to protect the rights of XXXXX, and to vest in XXXXX or its
successors or assigns the entire right, title and interest in and to
inventions, discoveries and improvements and the applications for
Letters Patent
relating to anything pertaining to or useful in the business of
XXXXX as provided in paragraph (1) hereinabove.
(4) EMPLOYEE further agrees not to divulge to any third party either
during his or her employment or thereafter, any confidential
information conceived or obtained by him or her while in the
employment of XXXXX relating to the business of XXXXX or to any of
its processes, apparatus, products, software, packages, programs or
trends in research, or to any of the inventions, discoveries,
processes or products covered hereby, and agrees to maintain this
information in confidence until such time as said information had
become widely known to the public or described in an issued Patent
or in a printed publication of wide circulation. Upon termination of
the employment, EMPLOYEE agrees to turn over to XXXXX all notes,
memoranda, notebooks, drawings, records and correspondence in
connection with anything done by him or her relating to his or her
employment; it being agreed that all confidential information
contained therein are at all times the sole property of XXXXX.
(5) The continuance of EMPLOYEE in the service of XXXXX for a definite
period is not made obligatory upon either party or a condition
hereof.
(6) EMPLOYEE further agrees that this agreement shall be binding upon
his or her heirs, executors, administrators or other legal
representative or assigns.
(7) EMPLOYEE represents that he or she has no agreements with or
obligations to others in conflict with the foregoing.
(8) Should any portion of this Agreement be held to be unenforceable,
such holding shall not adversely affect any other portion of this
Agreement.
(9) XXXXX may, at their sole discretion, waive ownership of said
inventions, discoveries and improvements mentioned in (1) above.
(10) Any inventions or products designed or manufactured prior to the
employment agreement between XXXXX and EMPLOYEE, as are more fully
listed herein or improvements made to the foregoing at any time, are
property of EMPLOYEE whether or not patent applications are filed
thereon; XXXXX has first right to acquire such inventions at their
fair market value, the said right to be exercised within a
reasonable period of time.
EMPLOYEE
Dated: November 11, 1997 /s/XXXX XXXXX (SEAL)
-----------------------------------
XXXXX LABORATORIES, INC.
Dated: November 11, 1997 /s/XXXX X. XXXXXXX (SEAL)
-----------------------------------
EXHIBIT "D"
COLLATERAL ASSIGNMENT AGREEMENT
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INSURER: Equitable Variable Life Insurance Company,
hereinafter referred to as "LIC".
POLICY#: 43-262517 and 43-262518
OWNER: Xxxx Xxxxx and Xxx Xxxxx
Irrev. Trust 10/11/93 INSURED: Xxxx Xxxxx
LENDER: Xxxxx Labs, Inc. EFFECTIVE Date: 12-22-93
--------
The Owner, being applicant and Owner of subject policy, hereby assigns
and conveys to Lender all right, title and interest in the Policy as collateral
security for indebtedness as evidenced by a Promissory Note executed this date
and to secure such future notes and indebtedness as may subsequently exist
between the parties here to at the time of settlement of the Policy. It shall be
a further term and condition of Lender's willingness to make such premium
payment loans to the Owner that the Insured and his wife, Xxx Xxxxx, shall be
co-makers on all notes evidencing premium payment loans make by Lender to Owner.
All incidents of ownership including the power to surrender, terminate or cancel
the above described policy shall remain in Owner.
The meaning of terms of this Agreement and the respective rights and
duties of Owner and Lender in the subject policy shall be defined in the
following numbered paragraphs, namely:
I. DEFINITIONS. (Refer to Policy Contract to Confirm Correct
Definitions)
"DEATH PROCEEDS": Specified amount, (alternatively, face amount),
plus the Accumulation Value described as Option B in the Policy Contract.
"CASH VALUES": Cash Values as used in this Agreement shall mean:
the accumulated Value or Policy Account Value, as that term is described in the
Policy Contract.
II. BENEFICIARY DESIGNATION RIGHTS:
------------------------------
Owner may designate a beneficiary or beneficiaries to receive any
proceeds payable on death of the Insured which are in excess of Lender's share
of such proceeds.
III. PREMIUM PAYMENT METHOD.
----------------------
Owner shall pay the planned periodic premium annually as of the
date of issue and upon each subsequent premium due date. Lender shall lend to
Owner for this purpose an amount equal to the planned periodic premium agreed
upon reduced by an amount equal to the Economic Benefit as defined in Rev.
Rules. 64-328 and 66-110. Lender shall not be obligated to make any further
premium payment loans once the policies in question have become self-sustaining
by reason of premiums previously paid.
IV. OWNER'S RETAINED INCIDENTS OF OWNERSHIP.
---------------------------------------
Except as to the limited policy security rights specifically
granted Lender herein, Owner retains all incidents of ownership (including the
right to surrender or cancel the policy and the right to borrow or withdraw
against the policy).
Owner's right to borrow shall be limited to an amount equal to the
maximum loan value reduced by the cumulative premiums loaned by the Lender under
the Split Dollar arrangement selected above.
Owner's right to withdraw from the policy cash values under the
policy's "Partial Surrender Provision" (which is defined as "the cash value"
less any indebtedness less the cost of Insurance until the next month
anniversary shall be limited to such "partial surrender value", as above
defined, reduced by the cumulative premiums paid by the Lender under the Split
Dollar arrangement selected above and subject to any policy surrender
limitations.
V. LENDER'S LOAN AND WITHDRAWAL RIGHTS.
-----------------------------------
Lender shall have the limited right from time to time to obtain
policy loans from the Insurer, limited to the extent of its interest as defined
herein and subject to the policy's maximum loan value.
VI. VARIATIONS OF PREMIUM PAYMENT METHODS.
-------------------------------------
The premium payment and loan obligations of the parties are those
selected under Paragraph III. Alternatively, Lender and Owner may agree that
Lender should lend to Owner some amount other than that stated in Paragraph III.
In this event, the rights under the policy shall be altered in the manner
described in Paragraph IX.
VII. DIVISION OF DEATH PROCEEDS OF POLICY.
------------------------------------
Division of death proceeds of the policy when premiums are
financed in strict accord with the Paragraph III and when Insured's death occurs
before the end of the grace period for any premium in default, shall be:
A. Lender shall be entitled to an amount equal to the cumulative
loans extended Owner by Lender reduced by any existing Lender policy loans or
cash withdrawals exercised by Lender under the provisions of Paragraph V, supra.
The beneficiary (s) designated by the Owner in accordance with Paragraph II
shall be entitled to any remainder of such proceeds.
B. If any Interest is due upon the death proceeds under the
terms of the insurance contract, Owner and Lender shall share such interest as
their respective share of the death proceeds (as defined in the preceding
paragraph) bears to the total death proceeds excluding such Interest.
C. If, upon the death of the Insured, there is a refund of
unearned premium under the policy provisions, then, in such event, any refund
shall be apportioned as follows:
1. Where Owner (or his/her assignee) has contributed to
the policy premium at the last required interval, the refund of unearned
premiums shall be divided between the Lender and the Owner (or his/her assignee)
as their respective share of the periodic premium (or loan) shall bear to the
total planned periodic premium (or loan) shall bear to the total planned
periodic premium for such interval.
2. Where the Owner (or his/her assignee) has not
contributed to the premium at the last premium interval, the refund of unearned
premium shall be refunded in total to the Corporation.
VIII. DIVISION OF THE NET CASH SURRENDER VALUE OF THE POLICY.
------------------------------------------------------
Divisions of the cash surrender value of the policy when
premiums are financed in strict accord with Paragraph III and when surrender
occurs not later than sixty days after the due date of any premium in default,
shall be:
Lender shall be entitled to an amount equal to the cumulative
loans extended by Lender to Owner less any existing policy loans or cash
withdrawals exercised by Lender under the provisions of Paragraph IV, supra.
Owner shall be entitled to any remainder of such cash value.
IX. PARTIES' RIGHTS WHERE PREMIUM PAYMENT VARIATIONS EXIST.
------------------------------------------------------
When premiums are not financed in strict accordance with Paragraph
III, Lender's share of the policy death proceeds or the policy cash value upon
surrender (each as defined in Paragraphs VII and VIII, respectively) shall be as
follows:
In the event that aggregate loans of the Lender shall be more or
less than the amounts defined in Paragraph III, then Lender's share of the death
proceeds or the cash value shall be increased or decreased, respectively in
corresponding dollar amount. The Owner's designated beneficiary, in the event of
death, and the Owner, in the event of surrender, shall be entitled to any
remainder of proceeds or cash values as the case may be.
To the extent that loans under this Agreement exceed the proceeds or
cash value of the policy, as the case may be, Owner or his/her heirs shall be
personally responsible for repayment of same.
X. TERMINATION OF AGREEMENT.
------------------------
The Agreement shall terminate upon the occurrence of any one
of the following events:
A. Termination by either party upon submission of 30 day
written notice to the other party;
B. Termination of the Insured's employment;
C. The Owner's failure to pay its proportionate share of
premium, if any, as mutually agreed upon by Owner and Lender under the option
provided within Paragraphs III and VIII, herein;
D. The Owner's failure to apply Lender's premium loans
to the policy premiums as similarly agreed upon under Paragraphs III and VI,
herein;
E. The Owner's election, at any time, to receive a
release of assignment of the policy from Lender.
Upon such termination, Owner shall have a 90-Day
Option to receive from Lender a release of assignment of the policy in
consideration of a cash payment to Lender of the total premium loans advanced.
Lender, its successor or assigns, agrees (solely for purposes of facilitating
such termination and payment of its loans secured by said policy) that Owner (or
his/her assignees) may borrow or withdrawal from the policy cash values amounts
in excess of Owner's share of cash value as defined in this Agreement. Should
Owner (or his/her assignees) fail to exercise such option within the prescribed
90-Day Period, Owner agrees that the subject policy will be surrendered to the
Insurer and the proceeds distributed between Lender and Owner as prescribed by
Paragraphs VII and VIII, herein.
XI. PREMIUM WAIVER
--------------
If subject policy contains a disability waiver of premium
provision or waiver of monthly deduction, any waived amounts shall be considered
for all purpose of this Agreement as having been paid by Owner.
XII. OWNER'S ASSIGNMENT OF RIGHTS
----------------------------
Owner may, at any time, assign to any individual, trust or other
organization all right, title and interest in the subject policy and all rights,
options, privileges and duties created under this Agreement.
XIII. NAMED FIDUCIARY AND PLAN ADMINISTRATOR
--------------------------------------
_________________________________ is hereby designated the
"Named Fiduciary" until resignation or removal by the Board of Directors.
As Named Fiduciary, _________________________ shall be
responsible for the management, control and administration of the Split Dollar
Plan as established herein. ________________________ may allocate to other
certain aspects of the management and operation responsibilities of the plan
including the employment of advisors and the delegation of any ministerial
duties to qualified individuals.
XIV. FUNDING
-------
The funding policy for the Split Dollar arrangement shall be to
maintain the subject policy in force by paying when due, all premiums required.
XV. AMENDMENT
---------
The Split Dollar Plan may be amended at any time and from time
to time by a written instrument executed by the Lender and Owner, their
successors and assigns.
XVI. BASIS OF PREMIUM PAYMENTS AND BENEFITS
--------------------------------------
Payments to and from the Split Dollar Plan adopted herein shall
be in accordance with the provisions of Paragraphs III through VIII, inclusive.
XVII. CLAIMS PROCEDURE FOR LIFE INSURANCE AND SPLIT DOLLAR PLAN
---------------------------------------------------------
Claim forms or claim information as to the subject policy can be
obtained by contacting X.X. Xxxxxxxx Associates.
When the Named Fiduciary has a claim which may be covered under
the insurance policy provisions, he or she should contact the office or the
person named above who will either
complete a claim form and forward it to an authorized representative of the
Insurer or advise the Named Fiduciary what further requirements are necessary.
The Insurer will evaluate the claim and make a decision as to payment with 90
days of the date the claim is received by the Insurer. If the claim is payable,
a benefit check will be issued to the Named Fiduciary and forwarded through the
office or person named above. In the event that a claim is not eligible under
the policy, the Insurer will notify the Named Fiduciary of the denial.
Such notification will be made in writing within 90 days of the
date the claim is received and will be transmitted through the office or person
named above. The notification will include the specific reasons for the denial
as well as specific reference to the policy provisions upon which the denial is
based. The Named Fiduciary will also be informed as to the steps which may be
taken to have the claim denial reviewed.
A decision as to the validity of a claim will ordinarily be made
within 10 working days of the date the claim is received by the Insurer.
Occasionally, however, certain questions may prevent the Insurer from rendering
a decision on the validity of the claim within the specific 90-day period. If
this occurs, the Named Fiduciary will be notified of the reasons for the delay
as well as the anticipated length of the delay, in writing and through the
office or person named above. If further information or other material is
required, the Named Fiduciary will be so informed.
If the Named Fiduciary is dissatisfied with the denial of the claim
or the amount paid, he or she has 60 days from the date he or she receives
notice of the claim denial or receipt of the amount paid to file his or her
objections to the action taken by the insurer. If the Named Fiduciary wishes to
contest a claim denial, he or she should notify the person or office named above
who will assist in making the inquiry to the insurer. All objections to the
Insurer's actions should be in writing and submitted to the person or office
named above for transmittal to the Insurer.
The Insurer will review the claim denial or amount paid and render a
decision on such objections. The Named Fiduciary will be informed in writing of
the decision of the Insurer within 60 days of the date the claim review request
is received by the Insurer. This decision will be final.
Once a decision has been rendered as to the distribution of proceeds
under the claim procedure described above as to the policy, claims for any
benefits due under the plan or the surrender of the policy may be made in
writing by the Owner or the Owner's designated beneficiary and the Insured (or
his/her assignee) or their designated beneficiary, as the case may be, to the
Named Fiduciary.
In the event a claim for benefits is wholly or partly denied or
disputed, the Named Fiduciary shall, within a reasonable period of time after
receipt of the claim, notify Owner or Owner's designated beneficiary and Insured
(or his/her assignee) or their designated beneficiary, as the case may be, of
such total or partial denial or dispute, listing:
A. The specific reason or reasons for the denial or dispute;
B. Specific reference to pertinent plan provisions upon which the
denial or dispute is based;
C. A description of any additional information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and
D. An explanation of the plan's review procedure.
Within 60 days of denial or notice of claim under the plan, a
claimant may request that the claim be reviewed by the Named Fiduciary in a full
and fair hearing. A final decision shall be rendered by the Named Fiduciary
within 60 days after receipt of request for review.
XVIII. AGREEMENT BINDING UPON PARTIES
------------------------------
This Agreement shall bind Lender and Owner, their heirs,
successors, personal representative and assigns.
XIX. INSURANCE COMPANY NOT A PARTY TO AGREEMENT
------------------------------------------
The Insurer is not responsible for the legal or tax validity
or effect of this Agreement. Further, the Insurer shall not be deemed a party to
this Agreement but will respect the rights of the parties as herein developed
upon receiving an executed copy of this Agreement.
Insurer shall not be responsible to account for the actual
premium contributions of the parties hereunder but shall rely solely upon the
written declarations of the parties in any distributions or settlement of the
policy's lifetime or death values. Payment or other performance of its
contractual obligations in accordance with the policy provisions shall fully
discharge the Insurer from any and all liability.
XX. CONTROLLING STATE LAW
---------------------
This Agreement shall be subject to and constructed under the laws
of the Commonwealth of Pennsylvania.
Executed at Newtown, Pennsylvania this 28th day of December, 1993.
Attest: XXXX XXXXX AND XXX XXXXX
IRREV. TRUST 10/11/93, OWNER
____________________________ BY: _______________________________
Witness Xxxxx Xxxx Xxxxx, Trustee
____________________________ BY: _______________________________
Witness Xxxxx Xxxx, Trustee
XXXXX LABS, INC. - LENDER
____________________________ BY: _______________________________
Witness Xxxx X. Xxxxxxx
INSURER (LIC): Equitable Variable Life Insurance Company
Policy #: 43-262517 and 43-262618
INSURED: Xxxx Xxxxx
OWNER: Xxxx Xxxxx and Xxx Xxxxx Irrevocable Trust
LENDER: Xxxxx Labs, Inc.
This Policy Collateral Assignment and Split Dollar Agreement was
recorded by LIC on ______________, 199__.
BY: ___________________________________
EXHIBIT "E"
GENERAL RELEASE
---------------
THIS GENERAL RELEASE is executed by XXXX XXXXX ("Xxxxx") in accordance
with the provisions of that certain Severance Agreement between Xxxxx and the
Company (the "Severance Agreement") dated this even date.
1. Xxxxx'x Release of the Company. In exchange for the compensation and
other benefits provided to Xxxxx as described in the Severance Agreement, Xxxxx
and his heirs and personal representatives release and absolutely discharge the
Company and the Company's shareholders, directors, Employees, agents, attorneys,
legal successors and assigns of and from any and all claims, actions and causes
of action, whether known or unknown, which he now has, or at any other time had,
or shall or may have against the Company based upon or arising out of any
matter, cause, fact, thing, act or omission whatsoever occurring or existing at
any time to and including the date hereof, including, but not limited to, any
claims for severance pay not set forth herein, vacation pay, fringe benefits,
damages, expenses, emotional distress or other monies or accountings, including
punitive damages, liquidated damages, exemplary damages or compensatory damages,
as well as any claims of wrongful termination, breach of contract or age,
national origin, race, sex or other discrimination under the Civil Rights Act of
1964, the Americans with Disabilities Act, the Fair Employment and Housing Act,
the Age Discrimination in Employment Act, or any other applicable law. As used
in this Paragraph 1, the term, the "Company", includes any and all parents,
divisions, subsidiaries or affiliated entitles of Xxxxx Labs, Inc.
2. Release Not to Affect Severance Agreement. This General Release is
not intended to in any way affect or release any rights or obligations of Xxxxx
or the Company as set forth in the Severance Agreement executed by Xxxxx and the
Company this even date.
IN WITNESS WHEREOF, the parties have signed this General Release this
11th day of November, 1997.
/s/XXXX XXXXX
-------------
Xxxx Xxxxx
