Exhibit 10.25
Split-Dollar Insurance Agreement between the Company and Xxxxxxx Life
Insurance Trust for the benefit of C. Xxxxxx Xxxxxxx, dated August
12, 1994.
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Split Dollar Insurance Agreement
Collateral Assignment
AGREEMENT, made and entered into this 12th day of August,
1994, by and between Xxxxxxx Xxxxx, Inc., Des Moines, Iowa
("Company"), and Xxxxxxx Life Insurance Trust, an irrevocable
trust, ("Owner") for the benefit of C. Xxxxxx Xxxxxxx, Des Moines,
Iowa.
WHEREAS, C. Xxxxxx Xxxxxxx is a valued Employee of the
Company, and Company wishes to provide additional inducement for
C. Xxxxxx Xxxxxxx'x continued involvement with the Company, and as
additional compensation, Company wishes to assist C. Xxxxxx
Xxxxxxx with respect to a personal life insurance program by
entering into this Split Dollar Insurance Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1. Policy. The life insurance policy (the "Policy") with
which this Agreement deals is identified in Exhibit "A" attached
hereto and by this reference incorporated herein. In the event
that this Agreement deals with multiple life insurance policies,
each policy shall be identified in a separate Exhibit "A" attached
hereto, and all references herein to the Policy shall include all
policies with respect to which a separate Exhibit "A" is attached
hereto.
2. Ownership. The Owner shall at all times be the owner of
the Policy, and shall have the sole right to exercise all
ownership rights granted to the owner by the terms of the Policy.
It is the express intention of the parties hereto to reserve to
the Owner all rights in the Policy granted by the terms of the
Policy, including, but not limited to, the right to borrow against
the Policy, the right to assign the Owner's interest in the
Policy, the right to change the beneficiary of the Policy, the
right to exercise settlement options, and the right to surrender
or cancel the Policy (in whole or in part). The Company shall not
have nor exercise any right in and to the Policy which could in
any way endanger, defeat or impair any of the rights of the Owner
in the Policy. The only rights in and to the Policy granted to
the Company shall be its security interest in the cash value of
the Policy and its right to receive a portion of the death benefit
of the Policy, all as provided herein.
3. Premiums. Premiums on the Policy shall be paid by the
parties hereto as set forth in Exhibit "B" attached hereto and by
this reference incorporate herein.
4. Interest of Company in the Policy. The Company's
interest in the Policy shall be limited to the following rights in
the cash value and to a portion of the death benefit of the Policy
as set forth below:
a. In the event the Policy is totally surrendered or
canceled by the Owner, the Company shall receive from the
surrender proceeds of the Policy: (i) the aggregate amount of
cumulative premiums paid by the Company, plus (ii) an amount, not
less than zero, which is calculated by taking 5.2 percent per
annum of the total amount of cumulative premiums paid by the
Company to date less $300,000.00 ("Amount Due Company").
b. Upon the death of C. Xxxxxx Xxxxxxx, or, if the
Policy is a survivorship life insurance product, upon the death of
the survivor of C. Xxxxxx Xxxxxxx and C. Xxxxxx Xxxxxxx'x spouse,
while the Policy remains in force, the Company shall receive from
the death benefit proceeds of the Policy the Amount Due Company.
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c. In the event of the termination of this Agreement,
the Company shall be repaid by the Owner the Amount Due Company.
d. In the event the Owner obtains a policy loan with
respect to the Policy or in the event the Policy is partially
surrendered and such loan or partial surrender causes the net cash
surrender value of the Policy to be a sum less than the Amount Due
Company, the Owner will repay to the Company a portion of any
Policy loan proceeds or partial surrender proceeds to the Company
so as to cause the net cash surrender value of the Policy following
the policy loan or partial surrender to be equal to or exceed the
Amount Due Company.
As used in this Agreement, the term "net cash surrender value"
shall mean the cash surrender value of the Policy, less the amount
of any then existing loans or withdrawals against the Policy
obtained by the Owner. As used in this Agreement, the term "the
aggregate amount of cumulative premiums paid by the Company" shall
mean the aggregate amount of premiums paid by the Company net of
any repayment to the Company of such amount.
5. Collateral Assignment. Contemporaneously herewith the
Owner has assigned the Policy as collateral security to secure
payment of the amounts payable to Company identified herein under
a form of Collateral Assignment which has been filed with the
insurance company issuing the Policy. In the event of a total or
partial surrender of the Policy, termination of this Agreement or
upon the death of C. Xxxxxx Xxxxxxx, or, if the Policy is a
survivorship life insurance product, upon the death of the
survivor of C. Xxxxxx Xxxxxxx and C. Xxxxxx Xxxxxxx'x spouse, the
amounts payable to the Company identified herein shall be paid to
the Company in accordance with the terms of such Collateral
Assignment.
6. Death of C. Xxxxxx Xxxxxxx. Upon the death of C. Xxxxxx
Xxxxxxx, or, if the Policy is a survivorship life insurance
product, upon the death of the survivor of C. Xxxxxx Xxxxxxx and
C. Xxxxxx Xxxxxxx'x spouse, the balance of the death benefit under
the Policy in excess of the amount payable to the Company under
the provisions hereof, if any, shall be paid directly to the
beneficiary or beneficiaries designated by the Owner in the manner
and in the amounts provided by the beneficiary designation of the
Policy filed with the insurance company issuing the Policy.
7. Termination. This Agreement may be terminated at any
time upon the mutual agreement of the parties hereto.
8. Assignment by Owner. In the event the Owner shall
transfer all interest in the Policy to a transferee, then all of
the Owner's interest in the Policy and in this Agreement shall be
vested in the transferee, who shall become a substituted party
hereto and who shall become bound by the provisions hereof, and
the Owner shall have no further interest in the Policy or in this
Agreement.
9. Assignment by Company. The Company shall not assign any
of its rights in the Policy or in this Agreement to anyone other
than the Owner (or the Owner's transferee, if the Owner has
transferred its rights in the Policy) without the prior written
consent of the Owner (or the Owner's transferee, if the Owner has
transferred its rights in the Policy). Any attempted assignment
or transfer by the Company in violation of this paragraph shall be
null and void and of no force and effect.
10. Insurer Liability. The insurance company which issues
the Policy shall not be deemed to be bound by the provisions of
this Agreement nor to have notice of the terms of this Agreement.
Any and all liability of the insurance company issuing the Policy
shall be determined solely by reference to the terms of the
Policy, any applicable riders to the Policy, the beneficiary
designation with respect to the Policy, the Collateral Assignment
with respect to the Policy and any other documents filed with the
insurance company and accepted and acknowledged by the insurance
company.
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11. Split Dollar Plan. This Agreement is intended to qualify the
ownership of the Policy as a collateral assignment method split dollar life
insurance employee benefit plan as described in Revenue Ruling 64-328, and
shall be administered so as to qualify as such a plan.
12. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and cannot be
amended, altered, modified, except by a written instrument signed by each of
the parties hereto.
13. Notices. Any notice, consent or demand required or permitted to be
given under the provisions of this Agreement by one party to another shall be
in writing, shall be signed by the party giving the notice, and shall be given
either by delivery to the other party personally, or by mailing, by United
States certified mail, postage prepaid, to the other party, addressed to the
other party's last known mailing address as shown on the records of the
Company. In the event such notice is given by mailing, the date of mailing
shall be deemed the date of the giving of such notice, consent or demand.
14. Binding on Successors and Assigns. This Agreement shall bind and
inure to the benefit of the parties and their respective heirs, successors and
assigns.
15. Governing Law. This Agreement shall be deemed made in the state of
Iowa Business Corporation Act, the this Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the
laws of the state of Iowa Business Corporation Act.
16. Severability. In the event a particular provision of this Agreement
is held to be invalid under applicable law, effect shall nevertheless be given
to all valid provisions hereof to further the objectives of this Agreement.
17. Interpretation. Where appropriate in this Agreement, words used in
the singular shall include the plural, and words used in the masculine or
neuter shall include the feminine.
18. Named Fiduciary and Plan Administrator. For the purposes of the
Employee Retirement Security Act of 1974 (ERISA), the Company shall be the
"Named Fiduciary" and Plan Administrator of the split dollar insurance plan
for which this Agreement is hereby designated the written plan instrument.
The Company, as Named Fiduciary, shall have authority to control and manage
the operation and administration of this Agreement, and it shall be
responsible for establishing and carrying out a funding policy and method
consistent with the objectives of this Agreement. Any decision by the Company
denying a claim for benefits under this Agreement shall be stated in writing,
set forth specific reasons for the denial, and be delivered or mailed to the
claimant. All claim procedures under this split dollar insurance plan shall
be performed in compliance with the requirements of ERISA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
year and date first above written.
Xxxxxxx Xxxxx, Inc.
Company
By /s/ Xxxxxx X. Xxxxxxx
Its CFO/Treasurer/Sec.
000
Xxxxxxx Xxxx, X. A., Trustee of the
Xxxxxxx Life Insurance Trust
Owner
By /s/ Xxxx Xxxxx
Its Vice Pres. Sr. Trust Officer
217
EXHIBIT "A"
Policy Number: 44209399
Issued by: Equitable Variable Life Insurance Company
Providing for initial death benefit proceeds of $3,500,000.
This policy is a survivorship life insurance policy on the
lives of C. Xxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx, C. Xxxxxx
Xxxxxxx'x wife, which pays a death benefit only upon the death of
the survivor of C. Xxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx.
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EXHIBIT "B"
Premiums
The Company shall pay all of the premiums due on the Policy.
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Collateral Assignment
THIS ASSIGNMENT is made and entered into this ________ day of
________________________, ________, by the undersigned as owner
(the "Owner") of a certain life insurance policy number 44209399
(the "Policy") issued by Equitable Variable Life Insurance Company
(the "Insurer") upon the lives of C. Xxxxxx Xxxxxxx and Xxxxxxx X.
Xxxxxxx, and Xxxxxxx Bank, Inc. (the "Assignee").
WHEREAS, C. Xxxxxx Xxxxxxx ("Employee") is a valued Employee
of the Assignee, and
WHEREAS, Owner has entered into a Split Dollar Agreement with
the Assignee (the "Agreement"), and
WHEREAS, in consideration of the Assignee agreeing to make
certain premium payments, the Owner agrees to grant the Assignee a
security interest in the Policy as collateral security for the
repayment of the cumulative premiums paid by the Assignee.
NOW, THEREFORE, the undersigned Owner hereby assigns,
transfers and sets over to the Assignee the following specific
rights in the Policy subject to the following terms and
conditions:
1. This Assignment is made, and the Policy is to be held,
as collateral security for all liabilities of the Owner to the
Assignee, either now existing or that may hereafter arise,
pursuant to the terms of the Agreement.
2. The Assignee's interest in the Policy shall be strictly
limited to:
a. The right to be repaid from the surrender proceeds
of the Policy: (i) the aggregate amount of cumulative premiums
paid by the Company, plus (ii) an amount, not less than zero,
which is calculated by taking 5.2 percent per annum of the total
amount of cumulative premiums paid by the Company to date less
$300,000.00 ("Amount Due Company") in the event the Policy is
totally surrendered or canceled by the Owner.
b. The right to be repaid from the death benefit
proceeds of the Policy the Amount Due Company upon the death of
the Employee, or, if the Policy is a survivorship life insurance
product, upon the death of the survivor of the Employee and the
Employee's spouse, while the Policy remains in force.
c. The right to be repaid the Amount Due Company in the
event of the termination of the Agreement.
d. The right to be repaid a portion of any Policy loan
proceeds or partial surrender proceeds paid to the Assignee so as
to cause the net cash surrender value of the Policy to be equal to
or exceed the Amount Due Company in the event the Owner obtains a
Policy loan or in the event the Policy is partially surrendered
and such loan or partial surrender causes the net cash surrender
value of the Policy to be a sum less than the Amount Due Company.
As used in this Assignment, the term "net cash surrender value"
shall mean the cash surrender value of the Policy, less the amount
of any then existing loans or withdrawals against the Policy
obtained by the Owner. As used in this Assignment, the term "the
aggregate amount of cumulative premiums paid by the Assignee"
shall mean the aggregate amount of premiums paid by the Assignee
net of any repayment to the Assignee of such amount.
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3. The Owner shall retain all incidents of ownership in the
Policy, including, but not limited to, the sole and exclusive
rights to: borrow against the Policy; make withdrawals from the
Policy; assign Owner interest in the Policy; change the
beneficiary of the Policy; exercise settlement options; and,
surrender or cancel the Policy (in whole or in part). All of
these incidents of ownership shall be exercisable by the Owner
unilaterally and without the consent of any other person.
4. The Assignee shall, upon request, if the Policy is in
the possession of the Assignee, forward the Policy to the Insurer,
without unreasonable delay, for change of beneficiary, any
election of optional mode of settlement, or the exercise of any
other right reserved by the Owner.
5. The Insurer is hereby authorized to recognize the
Assignee's claims, including the validity or the amount of any
liabilities of the Owner to the Assignee under the Agreement, the
existence of any default therein, the giving of any notice
required therein or herein, or the application to be made by the
Assignee of any amounts to be paid to the Assignee. Upon the
Insurer giving prior written notice to Owner of the proposed
payment of amounts to the Assignee, the receipt of the Assignee
for any sums received by it shall be a full discharge and release
therefore to the Insurer.
6. The Insurer shall be fully protected in recognizing a
request made by the Owner for surrender or cancellation of the
Policy, in whole or in part, or in recognizing a request made by
the Owner for any loans against the Policy permitted by the terms
of the Policy. In the event this request is made, upon prior
written notice thereof to the Assignee the Insurer may pay the
proceeds of any surrender, cancellation, or loan to the sole order
of the Owner, or as the Owner shall direct.
7. Upon the full payment of the liabilities of the Owner to
the Assignee pursuant to the Agreement, the Assignee shall execute
an appropriate release of this Collateral Assignment.
8. It is the express intention of the Owner to assign a
limited interest in the Policy to the Assignee as security for
certain premium payments made by the Assignee, without giving the
Assignee any incidents of ownership in the Policy within the
meaning of section 2042 of the Internal Revenue Code (and
regulations thereunder), or any similar provision of subsequent
law. All provisions of this Collateral Assignment (and of the
Agreement) shall be construed and exercised so as to effect this
intention.
IN WITNESS WHEREOF, the Owner and Assignee have executed this
Assignment and the Insurer has acknowledged its acceptance of this
Assignment effective the day and year first above written.
Xxxxxxx Bank, N.A. Trustee of the
Xxxxxxx Life Insurance Trust
Owner
By ________________________________________
Its _______________________________________
Xxxxxxx Xxxxx, Inc.
Assignee
By ________________________________________
Its _______________________________________
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ACCEPTED:
Equitable Variable Life Insurance Company
Insurer
By ________________________________________
Its _______________________________________
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