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Exhibit 10.17
COLLATERAL ASSIGNMENT
SPLIT-DOLLAR INSURANCE AGREEMENT-
THIS AGREEMENT is made and entered into as of the 7th day of December,
1993, by and between H&F MANAGEMENT, INC., an Ohio corporation (the
"Corporation") and XXXXX X. XXXXXXX (the "Employee").
WITNESSETH
WHEREAS, the Employee is employed by the Corporation and has performed
his duties in an efficient and capable manner;
WHEREAS, the Corporation is desirous of retaining the services of the
Employee;
WHEREAS, the Corporation is desirous of assisting the Employee in
paying for life insurance on his own life;
WHEREAS, the Corporation has determined that this assistance can best
be provided under a "split-dollar" arrangement;
WHEREAS, the Employee has applied for and is the owner of insurance
policy number Z104066 in the face amount of Two Million One Hundred Seventy Five
Thousand Dollars ($2,175,000), (referred to as the "Policy") which has been
issued by The New England (the "Insurer");
WHEREAS, the Corporation and the Employee agree to make the Policy
subject to this Split-Dollar Agreement;
WHEREAS, the Employee has assigned the Policy to the Corporation as
collateral for amounts to be advanced by the Corporation under this Agreement
by an instrument of assignment, dated as of December 7, 1993 (the "Assignment");
and
WHEREAS, it is now understood and agreed that this Split-Dollar
Agreement is to be effective as of the date on which the Policy was assigned to
the Corporation.
NOW, THEREFORE, for value received and in consideration of the premises
and mutual covenants contained herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
For purposes of the Agreement, the following terms will have the
meanings set forth below:
1. "Cash Surrender Value of the Policy" will mean the Cash Value of the
Policy less any Policy loans outstanding (including interest accrued to date)
and less any Surrender Charges.
2. "Cash Value of the Policy" will mean the total of the Policy's share
of the elected sub-accounts and the amounts of any assets transferred to the
general investment account, as calculated according to the provisions of the
Policy.
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3. "Corporation's Interest in the Policy" will mean the lesser of (i)
the Cash Value of the Policy; or (ii) premiums theretofore paid by the
Corporation regarding the Policy less the economic benefit taxable to the
Employee as described in Article II.
4. "Employee's Vested Interest in the Cash Value of the Policy" will
mean:
(a) with regard to any retirement of the Employee, the Cash Value of
the Policy less the Corporation's Interest in the Policy; plus,
(b) (i) if the Employee terminates employment with the Corporation
prior to age sixty-five (65), the Corporation's Interest in the Policy upon the
date of termination of Employee's employment or retirement multiplied by the
appropriate percentage as indicated in the following table:
CASH VALUE VESTING SCHEDULE
Prior to October 1, 1997 0%
October 1, 1997 50%
October 1, 1998 60%
October 1, 1999 70%
October 1, 2000 80%
October 1, 2001 90%
October 1, 2002 100%
(ii) if the Employee terminates employment with the Corporation on or
after reaching the age of sixty-five (65), the Corporation's Interest in the
Policy upon the date of termination of Employee's employment or retirement.
5. "Loan Value of the Policy" will mean:
(a) prior to Employee's termination of employment with the Corporation,
the amount which, with loan interest, will equal 90 percent of the Cash Value of
the Policy, projected with interest at a rate equivalent to 4.5 percent per year
compounded monthly to the next policy anniversary (or, if earlier, to the next
premium due date; less the Employee's Vested Interest in the Cash Value of the
Policy and the Surrender Charges on the next loan interest due date; or
(b) after Employee's termination of employment with the Corporation,
the amount which with loan interest will equal 90 percent of the Cash Value of
the Policy, projected at a 4.5 percent annual rate to the next policy
anniversary (or the next premium date, if earlier); less the Surrender Charges
on the next loan interest due date.
ARTICLE II.
ALLOCATION OF PREMIUMS
The Corporation will pay all premiums on the Policy when due. The
economic benefit taxable to the Employee regarding the premiums paid by the
Corporation will be computed in accordance with IRS Revenue Rulings 64-328,
1964-2 C.B. 11, and 66-110, 1966-1 C.B. 12, as in effect on the effective date
of this Agreement.
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ARTICLE III.
WAIVER OF PREMIUM RIDER
The Employee may add a rider to the Policy for his own benefit or, upon
request by the Corporation, the Employee may add a rider to the Policy for the
benefit of the Corporation. Any additional premium for any waiver of premium
rider which is added to the Policy shall be paid by the parties in the same
proportion as they are required to contribute to the premiums due each year and
upon the same terms as are set forth in Article II. The Employee has the right
as owner of the Policy to apply policy dividends in such manner as the Employee
may from time to time determine. In the event that the Employee shall elect to
apply dividends to purchase additional paid-up insurance, the term "Policy" as
used herein shall include such additional paid-up insurance.
ARTICLE IV.
PAYMENT OF PREMIUMS
Any premium or portion thereof which is payable by the Employee under
any Article of this Agreement may at the election of the Employee be deducted
from the cash compensation otherwise payable to him and the Corporation agrees
to transmit that premium or portion, along with any premium or portion thereof
payable by it, to the Insurer on or before the premium due date.
ARTICLE V.
RIGHTS IN THE POLICY
The Employee may exercise all rights, options and privileges of
ownership in the Policy except those granted to the Corporation in the
Assignment. The Corporation will have those rights in the Policy given to it in
the Assignment except as hereinafter modified. The Corporation will not without
the written consent of the Employee assign its rights in the Policy, other than
for the purpose of obtaining a loan against the Policy, to anyone other than the
Employee. The Corporation will not take any action in dealing with the Insurer
that would impair any right or interest of the Employee in the Policy. The
Corporation will have the right to borrow from the Insurer, and to secure that
loan by the Policy, an amount which, together with the unpaid interest accrued
thereon, will at no time exceed the Loan Value of the Policy.
ARTICLE VI.
RIGHTS TO THE PROCEEDS AT DEATH
Upon the death of the Employee while this Agreement is in force, the
Corporation will, without delay, take whatever action is necessary and required
of it to collect the proceeds of the Policy from the Insurer. Upon collection of
the Policy proceeds, the Corporation will promptly pay the excess of the Policy
proceeds over the Corporation's Interest in the Policy and forward the balance
to the beneficiary designated by the Employee under the terms of the Policy.
ARTICLE VII.
DISABILITY
If at any time the Policy contains a rider providing for the waiver of
premiums in the event of the Employee's disability, then, in the event of the
Employee's Total Disability, as defined in the rider, which begins while the
rider is in force and which continues for at least six months, the
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Employee will pay to the Corporation the excess, if any, and the Corporation
will release its interest in the Policy to the Employee. Upon release by the
Corporation of all of its interest in the Policy, the Employee will thereafter
own the Policy free from the Assignment and from this Agreement but subject to
any Policy loans and interest thereon as well as the Current Loan Balance.
ARTICLE VIII.
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time while the Employee is
living by written notice thereof by either the Corporation or the Employee to
the other; and, in any event, this Agreement will terminate upon termination of
the Employee's employment.
ARTICLE IX.
EMPLOYEE RIGHTS UPON TERMINATION
1. Upon termination of this Agreement for any reason other than death
of the Emp1oyee, The Employee shall be eligible to receive from the Corporation
benefits equal to the Employee's Vested Interest in the Cash Value of the
Policy.
2. Upon termination of this Agreement, the Employee agrees to transfer
all of his right, title and interest in the Policy to the Corporation, by
executing such documents as are necessary to transfer such right, title and
interest to the Corporation as of the date of termination. The Corporation
will thereafter be able to deal with the Policy in any way that it may see fit.
3. Notwithstanding anything to the contrary contained hereinabove,
should the Employee terminate his or her employment with the Corporation, the
Employee shall not, for a period of three (3) years thereafter, within the
continental United States, enter the employ of any person or organization
engaged in or about to become engaged in the research or development,
manufacturing, purchasing, accounting, engineering, merchandising, marketing,
leasing, selling on a wholesale basis or servicing any product which is a single
ended, screw base metal halide lamp for general lighting applications.
ARTICLE X.
STATUS OF AGREEMENT V. COLLATERAL ASSIGNMENT
As between the Employee and the Corporation, this Agreement will take
precedence over any provisions of the Assignment. The Corporation agrees not to
exercise any right possessed by it under the Assignment except in conformity
with this Agreement.
ARTICLE XI.
PLAN MANAGEMENT
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 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 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
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also allocate fiduciary responsibilities to others and may exercise any other
powers necessary for the discharge of its duties to the extent not in conflict
with ERISA.
ARTICLE XII.
CLAIMS PROCEDURE
1. FILING CLAIMS. 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 with The New England with respect to benefits under the Policy.
The Plan Administrator will, upon written request of the Claimant, make
available copies of any claim forms or instructions provided by The New England
or advise the Claimant where such forms or instructions may be obtained.
2. NOTIFICATION TO CLAIMANT. If a claim request is wholly or partially
denied, the Plan Administrator will furnish to the Claimant a notice of the
decision within ninety (90) days in writing and in a manner calculated to be
understood by the Claimant, which notice will contain the following information:
(a) The specific reason or reasons for the denial;
(b) Specific reference to 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 and an explanation of why such material or
information is necessary; and
(d) An explanation of the Plan's claims review procedure describing the
steps to be taken by a claimant who wishes to submit his claim for review.
In the case of benefits which are provided under the Policy, the
initial decision on the claims will be made by The New England.
3. REVIEW PROCEDURE. A Claimant or his authorized representative may
with respect to any denied claim:
(a) Request a review upon written application filed within sixty (60)
days after receipt by the Claimant of written notice of the denial of his claim;
(b) Review pertinent documents; and
(c) Submit issues and comments in writing.
Any request or submission will be in writing and will be directed to
the Named Fiduciary (or its designee). The Named Fiduciary (or its designee)
will have the sole responsibility for the review of any denied claim and will
take all steps appropriate in the light of its findings.
4. DECISION ON REVIEW. The Named Fiduciary (or its designee) will
render a decision upon review. If special circumstances (such as the need to
hold a hearing or any matter pertaining to the denied claim) warrant additional
time, the decision will be rendered as soon as possible, but not later than one
hundred twenty (120) days after receipt of the request for review. Written
notice of any such extension will be furnished to the Claimant prior to the
commencement of the extension. The
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decision on review will be in writing and will include specific reasons for the
decision, written in a manner calculated to be understood by the Claimant, as
well as specific references to the pertinent provisions of the Plan on which the
decision is based. If the decision on the review is not furnished to the
Claimant. with the time limits prescribed above, the claim will be deemed denied
on review.
ARTICLE XIII.
SATISFACTION OF CLAIM
The Employee agrees that his rights and interests, and the rights and
interests of any persons taking under or through him, will be completely
satisfied upon compliance by the Corporation with the provisions of this
agreement.
ARTICLE XIV.
AMENDMENT AND ASSIGNMENT
This Agreement may be altered, amended or modified, including the
addition of any extra policy provisions, by a written instrument signed by the
Corporation and the Employee. Either party may, subject to the limitations of
Article V, assign its interest and obligations under this Agreement, provided,
however, that any assignment will be subject to the terms of this Agreement.
ARTICLE XV.
POSSESSION OF POLICY
The Corporation will keep possession of the Policy. The Corporation
agrees from time to time to make the Policy available to the Employee or to the
Insurer for the purpose of endorsing or filing any change of beneficiary on the
Policy but the Policy will promptly be returned to the Corporation.
ARTICLE XVI.
GOVERNING LAW
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. This Agreement will be governed by the laws of the State of
Ohio.
ARTICLE XVII.
INTERPRETATION
Where appropriate in this Agreement, words used in the singular will
include the plural and words used in the masculine will include the feminine
(Signatures on Page 7)
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IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals, the Corporation by its duly authorized officer, on the day and year first
above written.
H & F MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Its: President
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By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Employee
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