REVERSE SPLIT DOLLAR INSURANCE AGREEMENT
This Agreement made and entered into as of this 31st day of October,
1997, by and between BONTEX, INC. (hereinafter sometimes referred to as the
"Corporation") and XXXXX X. XXXXXXXX (hereinafter sometimes referred to as
the "Employee" or "Insured") and NATIONSBANK, Trustee under Irrevocable Trust
Agreement dated June 6, 1994 as "Policy Owner."
WITNESSETH:
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WHEREAS, the Employee is a valued employee of the Corporation who the
Corporation desires to assist in paying for certain life insurance the
Employee desires to acquire to help assure continuity of good and harmonious
management of the Corporation;
WHEREAS, the Corporation has determined that this assistance can best
be provided under a "reverse split dollar" arrangement;
WHEREAS, for federal and Virginia estate tax purposes, the Employee is
the Grantor of a certain irrevocable insurance trust agreement dated June 6,
1994, and NationsBank, as Trustee of such trust, will own the policy or
policies acquired pursuant to this reverse split dollar arrangement;
WHEREAS, the Policy Owner has applied for, and is the owner and
beneficiary of, Life of Virginia Policy No. 2724346, Life of Virginia Policy
No. 2619397, and Equitable Life Assurance Society Policy No. 47237767
(collectively the "Policy") upon the life of Xxxxx X. Xxxxxxxx in the total
face amount of $4,000,000.00;
WHEREAS, the Policy Owner and the Corporation have entered into an
endorsement agreement granting the Corporation certain rights in the
insurance benefits, dated October 31, 1997 (the "Endorsement"); and
WHEREAS, it is agreed that this Reverse Split Dollar Agreement is to be
effective as of the date on which the policy is issued to the Policy Owner;
NOW, THEREFORE, for value received and in consideration of the mutual
covenants contained herein, the parties agree as follows:
Article I
GENERAL PROVISIONS
Section 1.1 Benefit
The Corporation shall assist with providing a death benefit to the
beneficiaries of the Employee set forth in Section 5.1, infra, and with the
specific terms and conditions set forth in Article II below.
Section 1.2 Policy
The Employee and Policy Owner shall arrange for a policy (or policies)
of whole life insurance on Employee's life in the amounts set forth in
Article II, infra.
Section 1.3 Custody of the Policy
The Policy Owner shall retain custody of the policy and shall remain
sole owner and beneficiary of the policy with all its ownership rights and
privileges subject to an endorsement of the policy proceeds to the
Corporation.
Section 1.4 Company Action
The Corporation shall not take any action with respect to the policy
which would impair the interest of the Policy Owner or its assigns in excess
of the total interest of the Corporation.
Section 1.5 Surrender of Corporation Rights
The Corporation shall not surrender or assign its rights under the
policy to anyone other than the Policy Owner or its assigns.
Section 1.6 Payment of Premiums
The Corporation shall pay the full amount of any premium due to the
life insurance company set forth in Article II, infra. Payment shall be made
within the grace period, if any, allowed by the policies for the payment of
the premiums.
Section 1.7 Excess Dividend Upon Premium Waiver
If a premium is waived under the terms of the total disability waiver
benefit provision, the excess dividend, if any, payable on the due date of
such premium shall be paid to the Policy Owner or its assigns.
Section 1.8 Surrender Value
If at the time the policy is surrendered prior to the death of the
insured (pursuant to Section 1.9 herein, infra), the surrender value of the
policy shall be paid to the Corporation.
Section 1.9 Surrender of the Policy
The Policy Owner or its assigns shall have the sole right to surrender
or cancel the policy and receive the surrender value thereof. In the event
of such surrender or cancellation, the Policy Owner or its assigns shall
receive the surrender value of the policy on behalf of the Corporation. It
is the purpose of this provision to specifically provide that the sole and
exclusive right to surrender or cancel the policy is vested in the Policy
Owner or its assigns.
Section 1.10 Option Upon Termination of Rights
In the event of termination of the rights of the Policy Owner or its
assigns under this Agreement, the Policy Owner or its assigns shall have the
option of purchasing from the Corporation all interests of the Corporation in
the policy on payment to the Corporation of a price equal to the then cash
surrender value of the policy.
(a) This option shall extend for sixty days after such termination.
(b) If the Policy Owner or its assigns exercise such option to
purchase, the Corporation shall execute all necessary documents required by
the insurer to effect an absolute assignment of the policy by the
Corporation.
(c) If the Policy Owner or its assigns shall fail to exercise the
said option, the Policy Owner or its assigns shall execute any and all
instruments that may be required to vest complete ownership of said policy in
the Corporation.
Section 1.11 Rights upon Death of Insured
Upon the death of the insured during the term of this Agreement, the
Policy Owner, without delay, shall take whatever action is necessary and
required of it to collect the proceeds of the policy(ies). Upon collection
of the policy proceeds, the Policy Owner shall distribute the policy proceeds
to the Corporation according to any optional mode of settlement election
filed with the insurer.
Section 1.12 Filing of Endorsement
The Policy Owner or its assigns will complete and file with the insurer
within a reasonable period an endorsement to the Corporation of its portion
of the policy(ies) to which this Agreement relates. The endorsement shall
give the Policy Owner or its assigns the right to obtain one or more loans or
advances on the policy to the extent of its interest.
Section 1.13 Assignment
The Policy Owner or its assigns shall have the right to make an
absolute assignment of its entire interest at any time to any person or
persons or entity. Upon delivery of a signed copy of such assignment to the
Corporation, all of the rights, obligations and duties of the Policy Owner or
its assigns hereunder shall pass to and be binding upon such assign
(including the right to make further assignments) and the Policy Owner shall
thereafter have no further interest whatsoever under this Agreement.
Section 1.14 Waiting Period
The Employee and Policy Owner shall not be eligible for a benefit under
this Agreement until the insurance contemplated by this Agreement is actually
obtained.
Section 1.15 Responsibility for Implementing Plan
It shall be the Employee's responsibility to make sure that the
insurance contemplated by this Agreement is applied for. The Employee shall
do this by working with the Policy Owner in filling out the application for
such insurance.
Article II
SPECIFIC BENEFITS
The Corporation shall provide the following benefit on the life of the
Employee:
(A) The Corporation shall assist the insured and the Policy Owner in
the purchase of a policy with a face value of $4,000,000.00.
(B) The Corporation shall at each premium due date pay toward such
policy an amount equal to the annual increasing "P.S.58" cost of such policy,
provided, however, such rates shall not exceed those charged for an insured
age 64.
(C) Dividends, if any, shall be used to purchase fully paid additions.
Article III
ERISA PROVISIONS
Section 3.1 Funding
The benefits provided herein shall be funded by the Corporation out of
its general assets and by purchasing individual policies on the life of the
insured.
Section 3.2 Fiscal Year
The "Fiscal Year" of the employee benefit plan created by this
Agreement shall be the same fiscal year adopted by the Corporation for
accounting purposes.
Section 3.3 Agreement
"Agreement" shall mean this Agreement, as most recently amended.
Section 3.4 Cost of Agreement
The entire cost of this Agreement shall be borne by the Corporation and
no contributions shall be required of the Employee or Policy Owner, except as
specifically provided herein.
Section 3.5 Named Fiduciary
For the purposes of the Employee Retirement Income Security Act of 1974
("ERISA"), the Corporation will be the "named fiduciary" and plan
administrator of the Reverse Split Dollar Life Insurance Plan (the "Plan")
for which this Agreement is hereby designated the written plan instrument.
The Corporation's board of directors may authorize a person or a group of
persons to fulfill the responsibilities of the Corporation as plan
administrator. The named fiduciary or the plan administrator may employ
others to render advice with regard to its responsibilities under this Plan.
The named fiduciary may also allocate fiduciary responsibilities to others
and may exercise any other powers necessary for the discharge for its duties
to the extent not in conflict with the Employee Retirement Income Security
Act of 1974.
Section 3.6 Claims Procedure
(a) Any insured, beneficiary or other individual (hereinafter
"Claimant") entitled to benefits under the Plan or under the Policy will file
a claim request with the plan administrator with respect to benefits under
the Plan and with the Equitable Life Assurance Society and Life of Virginia
Insurance Company, with respect to benefits under the policy. The plan
administrator will, upon written request of Claimant, make available copies
of any claim forms or instructions provided by the Equitable Life Assurance
Society and Life of Virginia Insurance Company or advise the Claimant where
such forms or instructions may be obtained.
(b) If such claim for benefits is wholly or partially denied, the
Corporation shall, within a reasonable period of time, but no later than
ninety days after receipt of the claim, notify the Claimant of the denial of
the claim. Such notice of denial (1) shall be in writing, (2) shall be
written in a manner calculated to be understood by the Claimant, and (3)
shall contain (A) the specific reason or reasons for denial of the claim, (B)
a specific reference to the pertinent plan provisions upon which the denial
is based, (C) a description of any additional material or information
necessary for the Claimant to perfect the claim, along with an explanation
why such material or information is necessary, and (D) an explanation of the
Plan's claim review procedure.
(c) Within one hundred twenty days of the receipt by the Claimant of
the written notice of denial of the claim, or such later time as shall be
deemed reasonable taking into account the nature of the benefit subject to
the claim and any other attendant circumstances, or if the claim has not been
granted within a reasonable period of time, the Claimant may file a written
request with the Corporation that it conduct a full and fair review of the
denial of the Claimant's request for benefits, including conducting a
hearing, if deemed necessary by the reviewing party. In connection with the
Claimant's appeal of the denial of his benefit, the Claimant may review
pertinent documents and may submit issues and comments in writing.
(d) The Corporation shall deliver to the Claimant a written decision
on the claim promptly, but not later than sixty days, after the receipt of
the Claimant's request for review, except that if there are special
circumstances (such as the need to hold a hearing), which require an
extension of time for processing, the aforesaid sixty-day period shall be
extended to one hundred twenty days. Written notice of such extension will
be provided to the Claimant prior to commencement of the extension. Such
decision shall (1) be written in a manner calculated to be understood by the
Claimant, (2) include specific reasons for the decision, and (3) contain
specific references to the pertinent plan provisions upon which the decision
is based.
Article IV
TERMINATION OF BENEFITS AND PLAN
Section 4.1 Term of Agreement
This Agreement shall be effective for a term of one (1) year from the
effective date of this Agreement. The Employee, with the consent of the
Corporation, may renew this Agreement annually for up to nine additional one
(1) year terms. Notice of the Employee's election for renewal shall be given
in writing by the Employee to the Corporation, with a copy to the Policy
Owner, such writing to be delivered by hand or by registered or certified
mail to the Secretary of the Corporation at least sixty (60) days but no more
than ninety (90) days before the end of the then current term of the
Agreement. The Corporation then shall accept or reject the Employee's
renewal election within thirty (30) days of its receipt of such election
notice by writing delivered by hand or by registered or certified mail to the
Employee, with a copy to the Policy Owner.
Upon the earlier of (1) the end of the last allowable renewal term of
this Agreement, (2) the Employee's failure to elect to renew this Agreement,
and (3) the Corporation's rejection of the Employee's election to renew this
Agreement, this Agreement shall terminate and the Policy Owner then may
exercise its option under Section 1.10 of this Agreement.
Section 4.2 Termination of Benefits for Cause
This Agreement or any provision thereof may be terminated upon the
happening of any one of the following events:
(a) The Corporation's failure to pay to the Policy Owner its share of
the premiums required hereunder in a timely manner.
(b) Bankruptcy, insolvency or winding-up of the Corporation;
(c) Employee's discharge for cause.
Upon discharge for cause, the Employee and his family and beneficiary
(the Policy Owner) shall be entitled to no benefit whatsoever under this
Agreement, and all obligations to the Corporation owed by the Employee, his
family and beneficiary under this Agreement shall immediately be due to the
Corporation.
"Discharge for cause" shall mean termination of employment for proven
embezzlement, intoxication or illegal drug use which materially interferes
with job performance, absenteeism greater than twice normal Corporation
policy, wrongful disclosure of Corporation confidential information, gross
insubordination or conviction of a felony adversely affecting the ability of
the Employee to carry on his normal duties or which creates a reasonable
doubt as to the Employee's morality as it relates to the Corporation.
Article V
MISCELLANEOUS
Section 5.1 Designated Beneficiaries
Whenever a post-death benefit is to be paid pursuant to this Agreement,
the following shall be the beneficiary(ies) of such benefit:
(a) If the Policy Owner has properly filled out a beneficiary
designation, then the latest of such beneficiary(ies) to be designated in the
order of their designation.
(b) If the Policy Owner has not filled out a beneficiary designation,
or if having filled one out the same is revoked, then to those person(s) or
trust(s) who would have taken if such benefit were included in the general
assets of the Xxxxx X. Xxxxxxxx Irrevocable Trust dated June 6, 1994.
Section 5.2 Insurer Relations
No insurer which may issue any policy for the purpose of this Agreement
shall be deemed a party to this agreement, nor shall any insurer be required
to take or permit any act contrary to the provisions of said policy, nor
contrary to any regulations of any such insurer, nor shall any such insurer
be responsible for the validity of this Agreement. The validity of this
Agreement shall be measured solely by the terms and conditions of this
Agreement.
Section 5.3 Agreement Binding
This plan shall bind the Corporation or its successors and assigns, and
the Employee or his assigns, the Policy Owner and its assigns and any policy
beneficiary.
Section 5.4 Governing Law
This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the Commonwealth of
Virginia.
Section 5.5 Rules of Construction
Wherever in this instrument words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine or
neuter gender whenever they would so apply, and vice versa. Wherever words
appear in the singular or plural, they shall be read and construed as in the
plural or singular, respectively, wherever they would so apply.
Section 5.6 Amendment
This Agreement may be altered, amended or modified, including the
addition of any extra policy provisions by written instrument signed by the
parties hereto.
Section 5.7 Precedence Over Endorsement
As between the Policy Owner and the Corporation, this Agreement will
take precedence over any provisions of the Endorsement. The Corporation
agrees not to exercise any right possessed by it under the Endorsement which
conflicts with this Agreement.
Section 5.8 Merger
This Agreement sets forth the entire Agreement of the parties hereto,
and any and all prior agreements, to the extent inconsistent herewith, are
hereby superseded.
Section 5.9 No Contract of Employment
Nothing herein shall be deemed to create any express or implied
contract of employment between the Corporation and the Employee.
Section 5.10 Execution of Documents
The Employee and Policy Owner by acceptance of potential benefits under
this Agreement, agree to execute any documents which may be necessary or
proper in the carrying out of the purpose and intent of this Agreement.
In witness whereof the parties have executed this Agreement the date
above written.
BONTEX, INC.
By: s/Xxxxx X. Xxxxx
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Its: s/Asst. Corp. Secretary
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Attest: s/Xxxxx Xxxxxx Xxxxx
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Its: s/Administrative Asst.
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s/Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX, Employee
NATIONSBANK, TRUSTEE UNDER
XXXXX X. XXXXXXXX IRREVOCABLE
TRUST DATED JUNE 6, 1994
By: s/[Illegible]
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Its: s/Assistant Vice President
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ENDORSEMENT
Life of Virginia Policy No. 2724346
Life of Virginia Policy No. 2619397
Equitable Life Policy No. 47237767 Date: October 31, 1997
Life Insured: Xxxxx X. Xxxxxxxx
Section 1.1 Ownership
(a) NATIONSBANK, Trustee under Irrevocable Trust dated June 6, 1994
(hereinafter sometimes called "Policy Owner") hereby transfers all ownership
rights in and to the above-captioned life insurance policies (hereinafter
called "Policy") to BONTEX, INC. (hereinafter sometimes called "sub-owner")
or its assigns with only the following exceptions:
(1) The Policy Owner shall not take any action with respect to
the policy which would impair the interests of the policy sub-owner or its
assigns in excess of the total interest of the Policy Owner.
(2) The Policy Owner shall not surrender or assign its rights
under the policy to anyone other than the policy sub-owner or its assigns.
(3) If at the time the policy is surrendered prior to the death
of the insured (pursuant to (4) herein, infra), the interest of the policy
sub-owner or its assigns shall be the cash surrender value of the policy.
(4) The Policy Owner shall have the sole right to surrender the
value of the policy on behalf of the policy sub-owner or its assigns. It is
agreed that the insurer may be directed to draw a check payable to the policy
sub-owner or its assigns. It is the purpose of this provision to
specifically provide that the sole and exclusive right to surrender or cancel
the policy is vested in the Policy Owner.
(5) The Policy Owner may borrow against the policy to the
extent of the cash surrender value, but not in excess of the amount of
premiums paid by the Policy Owner. For the purposes of this assignment,
premiums paid pursuant to the automatic premium loan provision of the subject
policy and premiums waived by the insurer because of the insured's disability
shall not be considered to be paid by the Policy Owner. Also, any premium
refunded because of the insured's disability shall be refunded to the Policy
Owner, and, thereafter, such refunded premium shall not be considered as
having been paid by the Policy Owner.
Section 1.2 Rights upon Death of Insured
Upon the death of the insured during the term of the Reverse Split
Dollar Agreement, the policy proceeds shall be distributed as follows:
(a) Policy Owner shall first be repaid the total premium paid by it.
(b) All of the rest of the said proceeds shall be payable to the
beneficiaries of the policy according to any optional mode of settlement
election filed with insurer, the policy sub-owner or its assigns.
Section 1.3 Insurer
The insurer may, in determining the amount of the above-mentioned
payment safely accept, rely and act upon such evidence by affidavit or other
document which in its judgment is sufficient evidence. The submission to the
insurer of a receipt for such payment signed by the said sub-owner or
transferee shall be a discharge therefor to the insurer and final and
conclusive evidence that such payment has been duly paid to and received by
the party lawfully and rightfully entitled to the same, and that all claims
and demands whatever against the insurer in respect thereto have been fully
satisfied.
Owner: NATIONSBANK, TRUSTEE UNDER
XXXXX X. XXXXXXXX
IRREVOCABLE TRUST DATED
JUNE 6, 1994
By: s/[Illegible]
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Its: s/Assistant Vice President
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Sub-owner: BONTEX, INC.
By: s/Xxxxxxx Xxxxxxxx
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Its: s/Corporate Controller
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