EXHIBIT 10.43
SPLIT DOLLAR COLLATERAL ASSIGNMENT BETWEEN THE COMPANY AND
XXXXX X. XXXXXXX, DATED DECEMBER 1, 1999.
OWNER: Xxxxx X. Xxxxxxx shall
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refer to the Employee, Third Party, or Trust, and his/her/its
successors and assigns;
ASSIGNEE: Encad, Inc. shall
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refer to the Employer, And its successors and assigns;
INSURER: Nationwide Life Insurance Company;
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POLICY NO.: **
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INSURED: Xxxxx X. Xxxxxxx;
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SPLIT DOLLAR AGREEMENT: shall refer to the Agreement entered into between the
Owner and the Assignee dated December 1, 1999, which is the subject of
this Collateral Assignment.
In consideration of the Split-Dollar Agreement (the "Agreement") entered into
between the above named Assignee and Owner, Assignee and Owner agree as follows:
a) The above numbered Policy is assigned by Owner to Assignee as
collateral security of Owner's liability to Assignee as
defined in the Agreement (the "Assignee's Interest"), subject
to all terms and conditions of the Policy and to all superior
liens, if any, which the Insurer may have against the Policy.
b) The rights of the Owner and Assignee are specified in the
Agreement. This Collateral Assignment is intended to provide
direction to the Insurer as to the required signatures when
either or both parties exercise certain policy rights.
In accordance with the Split Dollar Agreement, the parties agree to the
following limitations of the ability to exercise the rights provided under the
Policy:
DEATH BENEFITS
The Owner shall have the right to receive from the Policy Proceeds, an amount
determined in accordance with the Split Dollar Agreement and this Assignment.
The Assignee shall have the right to receive the balance, if any, of the Policy
Proceeds. Each Party shall have the right to designate and change the
beneficiary or beneficiaries to receive its portion of the Policy Proceeds
payable in accordance with the Split Dollar Agreement. Insurer may rely on the
Assignee's representation as to the amount so set forth in the Split Dollar
Agreement.
CASH VALUES
1. INVESTMENT CHOICES: The Assignee shall have the right to exercise any
investment choices permitted by the Policy with respect to the cash
value of the Policy, and Owner shall agree to waive this right as long
as this Agreement remains in force in accordance with the established
procedures of the Insurer.
2. SURRENDERS, POLICY LOANS AND PARTIAL WITHDRAWALS: The Assignee shall
be permitted to request and receive a distribution from the Policy in
the form of a Policy Loan, a withdrawal of cash value or a partial
surrender at an time without the prior consent of the Owner, except
that such distribution shall
** CONFIDENTIAL TREATMENT REQUESTED
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be limited to the Assignee's Interest in the Policy as defined in the
Split Dollar Agreement. The Owner shall not have the right to request
and receive a loan secured by Policy Cash Values without the express,
written consent of the Assignee. The Owner shall not have the right to
receive a distribution from the cash value of the Policy (in the form
of a Cash Withdrawal, Partial Surrender or otherwise) prior to the
termination of service by the Insured with the Assignee without the
express, written consent of the Assignee. After the termination of
service of the Insured with the Assignee, the Owner shall have the
right to receive distributions from the Policy Cash Values, but only
at the time and in the amount set forth in the Split Dollar Agreement.
Insurer may rely on the Assignee's representation as to the amount so
set forth in the Split Dollar Agreement and the manner in which the
distribution is to be accomplished.
3. TERMINATION OF THE SPLIT DOLLAR AGREEMENT: In the event of the
termination of the Split Dollar Agreement in accordance with the
provisions thereof, the Assignee shall have the right to receive an
amount equal to its Interest in the Policy payable from the cash
values of the Policy (in the form of a Cash Withdrawal, Partial or
Complete Surrender, Policy Loan or otherwise as chosen by the Assignee
with out the consent of the Owner). Pursuant to the Split Dollar
Agreement, the Owner may exercise the right to satisfy the Assignee's
Interest in the Policy by direct payment to the Assignee. Insurer may
rely on the Assignee's representation as to the amount of its Interest
in the Policy set forth in the Split Dollar Agreement and the manner
in which the distribution is to be accomplished.
MISCELLANEOUS RIGHTS
1. Any other rights not provided for in this Collateral Assignment,
including the right to surrender the Policy or exercise any
non-forfeiture options under the Policy, shall require the written
consent of both Owner and Assignee unless otherwise provided.
2. Insurer may rely on the Assignee's representation as to the amount of
the Assignee's Interest in the Policy in accordance with the Split
Dollar Agreement
3. Insurer may act on any request to exercise any right based on the
required signatures as set forth in this Collateral Assignment, and
Insurer has no duty to investigate the reason for any such exercise.
Upon payment of any amounts from the Policy based on this request,
during Insured's lifetime or at death, Insurer shall be fully
discharged and released as to its actions.
4. Owner represents that there are no other collateral assignments of the
Policy and no proceedings in bankruptcy are pending.
5. This Split-Dollar Collateral Assignment shall be binding upon the
parties and their successors, assigns, devisees, personal
representatives and other legal representatives.
6. In the event of any conflict between the terms specifying the required
signatures in this Split-Dollar Collateral Assignment and the
signatures required in the Agreement, the terms of this Split-Dollar
Collateral Assignment shall prevail as to signatures.
The Owner hereby assigns, transfers, and sets over the Policy to the Assignee,
as collateral, to secure the rights of the Assignee as set out in this
Collateral Assignment, and for no other purpose. The Policy shall remain subject
to this assignment notwithstanding any assignment, transfer or conveyance of the
Policy or any interest therein by the Owner. Nothing in this assignment shall
change the rights and obligations of the Owner and the Company as set out
herein, or in the Split Dollar Agreement as described in the preamble language
of this Assignment.
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Agreed to this 1st day of December, 1999.
If signing for an entity, the undersigned represents that she/he has authority
to bind the entity.
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ENCAD, Inc.
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OWNER (Print name) ASSIGNEE (Print name of entity or individual)
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx, V.P.
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SIGNATURE OF OWNER SIGNATURE OF ASSIGNEE
(and if an entity print title of authorized xxxxxx)
0000 Xxxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxx, XX 00000
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ADDRESS ADDRESS
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Filed at the Home Office of the Insurer this ______ day of _______, 2000.
By
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Authorized Officer
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