EXHIBIT 10.9
ORIGINAL IN OH&S WILL VAULT
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
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(1035 EXCHANGE POLICY)
This Split Dollar Life Insurance Agreement is made as of July 20, 1998, by
and between XXXXXXX MARITIME CORPORATION, a Delaware corporation (the
"Corporation") and XXXXXX X. XXXXXXX, XX., (its "Employee").
RECITALS
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1. The Employee owned certain policies of insurance on the life of the
survivor of Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx, as shown on the attached
Schedule A, (the "Old Policies") which policies (among others) were the subject
of a split dollar life insurance agreement dated as of April 6, 1992, between
the parties hereto (the "Old Split-Dollar Agreement").
2. The Employee effected the exchange of the Old Policies for a new policy
of insurance issued by Pacific Mutual Life Insurance Company (the "Policy") on
the life of Xxxxx Xxxxxxx (the "Insured"), as shown on Schedule B hereto.
3. The Corporation and the Employee desire to continue to have the
provisions of the Old Split-Dollar Agreement, as modified and restated herein,
apply to the Policy.
4. The parties intend this Agreement to constitute a plan of split dollar
life insurance under Revenue Rulings 64-328 and 66-110.
NOW, THEREFORE, in consideration of the good and valuable consideration
referred to herein, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Ownership of the Policy.
(a) The Employee is the sole owner of the Policy, and may exercise
all incidents of ownership with respect thereto without the Corporation's
consent, subject only to the limited rights given the Corporation under the
terms of the limited collateral assignment provided for herein.
(b) The Employee shall execute the deliver a limited collateral
assignment to the Corporation as security for repayment of the amount due to
the Corporation under this Agreement. However, the Corporation shall neither
have nor exercise any rights as collateral assignee of the Policy that could
in any way defeat or impair the Employee's right to receive the cash surrender
value or the death proceeds of the Policy in excess of the amount due to the
Corporation hereunder. In no event shall the Corporation have the power to
change the beneficiary, to surrender the Policy, to assign the Policy or revoke
an assignment, to pledge the Policy for a loan, or to obtain from the insurer a
loan against the surrender value of the Policy. All provisions of this
Agreement and of such collateral assignment shall be construed so as to carry
out such intention. A form of the Limited Collateral Assignment is attached
hereto as Schedule C.
2. Premium Payments.
(a) The Corporation shall pay the entire premium on the Policy on or
before the date said premium in due or the end of the grace period allowed for
the payment of premiums.
(b) Until this Agreement is terminated, the Employee shall pay to
the Corporation each year an amount equal to the economic benefit to the
Employee with respect to the Policy as determined under applicable Internal
Revenue Service rulings.
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3. Termination Of This Agreement. This Agreement shall terminate upon
the first to occur of any one of the following events (the "Termination Event"):
(a) Upon surrender of the Policy by the Employee to the issuer of
the Policy;
(b) If the Employee fails to make any payment required pursuant to
paragraph 2(b) of this Agreement within 60 days after notice from the
Corporation of the amount due;
(c) at the option of the Corporation if the Employee ceases to be
employed by the Corporation; or
(d) bankruptcy, insolvency or dissolution of the Corporation.
4. Rights Upon Termination. Upon the termination of this Agreement,
(a) the obligation of the Corporation to pay the premiums on the
Policy shall cease; and
(b) within 30 days after the Termination Event, the Employee shall
pay to the Corporation an amount equal to the lesser of (i) the Policy cash
surrender value or (ii) the sum of the amounts paid by the Corporation with
respect to the Old Policies pursuant to the Old Split-Dollar Agreement plus the
amounts paid by the Corporation pursuant to paragraph 2(a) of this Agreement
(reduced in all cases by all payments made by the Employee under the Old
Split-Dollar Agreement and under paragraph 2(b) of this Agreement).
5. Rights Upon Death of Insured. Unless this Agreement is sooner
terminated as provided in this Agreement, within 30 days after the death of the
Insured under the Policy, the Employee shall pay to the Corporation an amount
equal to the sum of the amounts paid by the Corporation with respect to the Old
Policies pursuant to the Old Split-Dollar
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Agreement plus the amounts paid by the Corporation pursuant to paragraph 2(a) of
this Agreement (reduced in all cases by all payments made by the Employee under
the Old Split-Dollar Agreement and under paragraph 2(b) of this Agreement).
6. Insurer Not a Party. The issuer of the Policy is not a party to this
Agreement for any purpose, shall not be obligated to inquire into the
distribution of any monies payable or paid by it under the Policy and shall be
fully discharged from any and all liability under the terms of the Policy upon
payment or other performances in accordance with the terms of the Policy.
7. Governing Law. This Agreement shall be governed by the laws of the
State of California.
8. Entire Agreement. The Corporation and the Employee each warrant that
no promise, inducement or agreement not contained or referred to in the
Agreement has been made to it or to him in connection with this Agreement.
9. ERISA Provisions. The Corporation is hereby designated as the named
fiduciary under this Agreement. The named fiduciary shall have the authority to
control and manage the operation and administration of this Agreement. The
policy for funding the obligations under this Agreement shall be the payment of
premiums on the Policy.
10. Binding Effect. This Agreement is binding upon and inures to the
benefit of the Corporation and the Employee and their representatives, agents,
servants, employees, heirs, successors, executors, administrators, attorneys,
partners, insurers, stockholders, predecessors and assigns.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
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the day and year first above written.
XXXXXXX MARITIME CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxx
Exec. V.P.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxxxx, Xx.
Employee
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SCHEDULE A
(Policies On Life Of The Survivor Of Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx)
Insurance Company Policy Description/No. Face Amount
----------------- ---------------------- -----------
Prudential Insurance Co. Survivorship Select
Of America No. 79 772 751 $7,000,000
Confederation/Phoenix Home Joint & Last Survivor II
Life Insurance Co. No. 9002286 $3,000,000
SCHEDULE B
(Policy On Life Of Xxxxx Xxxxxxx)
Insurance Company Policy Description/No. Face Amount
----------------- ---------------------- -----------
Pacific Life Variable Life $11,296,319
Insurance Co. No. VP60672520
SCHEDULE C
LIMITED COLLATERAL ASSIGNMENT
This Limited Collateral Assignment is made by Xxxxxx X. Xxxxxxx, Xx., as
Assignor, to Xxxxxxx Maritime Corporation, a Delaware Corporation, as Assignee.
FOR VALUE RECEIVED, the Assignor hereby collaterally assigns to the
Assignee Policy No. VP60672520, issued by Pacific Life Insurance Company (the
"Insurer") in the face amount of $11,296,319 (the "Policy"), upon the life of
Xxxxx Xxxxxxx, on the following terms:
1. The sole purpose of this limited collateral assignment is to secure
the Assignee's right to receive the amount due to it under that certain
Split
Dollar Life Insurance Agreement between the Assignor and the Assignee, dated as
of July 20, 1998.
2. This limited collateral assignment includes no incidents of ownership
in the Policy, and the Assignee's interest in the Policy is not assignable to
anyone other than the undersigned or his nominee.
3. The Assignor retains all incidents of ownership in the Policy,
including, without limitation, the power to change the beneficiary, the power to
effect an exchange of the Policy, the power to surrender or cancel the Policy,
the power to assign the Policy or revoke an assignment, and the power to pledge
the Policy for a loan or to obtain from the Insurer a loan against the surrender
value of the Policy.
4. The Insurer is hereby authorized to recognize the Assignee's rights
hereunder without investigating the Assignee's rights under the
Split Dollar
Life Insurance Agreement; the signature of the Assignee shall be sufficient for
the exercise of any rights under the Policy and the receipt of the Assignee for
any sums received by it shall be a full discharge and release to the Insurer.
5. Upon full payment of the Assignee of the amount due to the Assignee
under the
Split Dollar Life Insurance Agreement, the Assignee shall execute all
documents required by the Insurer of the Assignor to release this Limited
Collateral Assignment.
This Limited Collateral Assignment is entered into on July 20, 1998.
ASSIGNOR
/s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx.
ASSIGNEE
XXXXXXX MARITIME CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
Exec. V.P.
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LIMITED COLLATERAL ASSIGNMENT
(1035 EXCHANGE POLICY)
This Limited Collateral Assignment is made by Xxxxxx X. Xxxxxxx, Xx., as
Assignor, to Xxxxxxx Maritime Corporation, a Delaware Corporation, as Assignee.
FOR VALUE RECEIVED, the Assignor hereby collaterally assigns to the
Assignee Policy No.VP60672520, issued by Pacific Life Insurance Company (the
"Insurer") in the face amount of $11,296,319 (the "Policy"), upon the life of
Xxxxx X. Xxxxxxx, on the following terms:
1. The sole purpose of this limited collateral assignment is to secure
the Assignee's right to receive the amount due to it under that certain
Split
Dollar Life Insurance Agreement between the Assignor and the Assignee, dated as
of July 20, 1998.
2. This limited collateral assignment includes no incidents of ownership
in the Policy, and the Assignee's interest in the Policy is not assignable to
anyone other than the undersigned or his nominee.
3. The Assignor retains all incidents of ownership in the Policy,
including, without limitation, the power to change the beneficiary, the power
to surrender or cancel the Policy, the power to effect an exchange of the
Policy, the power to assign the Policy or revoke an assignment, and the power
to pledge the Policy for a loan or to obtain from the Insurer a loan against
the surrender value of the Policy.
4. The Insurer is hereby authorized to recognize the Assignee's rights
hereunder without investigating the Assignee's rights under the
Split Dollar
Life Insurance Agreement, the signature of the Assignee shall be sufficient for
the exercise of any rights under the Policy and the receipt of the Assignee for
any sums received by it shall be a full discharge and release to the Insurer.
5. Upon full payment to the Assignee of the amount due to the Assignee
under the
Split Dollar Life Insurance Agreement, the Assignee shall execute all
documents required by the Insurer or the Assignor to release this Limited
Collateral Assignment.
This Limited Collateral Assignment is entered into on July 20, 1998.
ASSIGNOR
/s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx.
ASSIGNEE
XXXXXXX MARITIME CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Exec. V.P.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice Pres. & Gen. Counsel
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