EXHIBIT 10.46
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AMENDMENT TO AMENDED AND RESTATED XXXX X. XXXXXXXXXX & SON, INC.
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SPLIT-DOLLAR INSURANCE AGREEMENT NUMBER ONE
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THIS AMENDMENT (the "Amendment") is made and entered into as of
the 12th day of February, 2004, by and between Xxxx X. Xxxxxxxxxx &
Son, Inc., an Illinois corporation (the "Company"), Xxxxxx X.
Xxxxxxxxxx, individually, Xxxxxx X. Xxxxxxxxxx, individually
(collectively the "Insureds" and individually an "Insured"), and Xxxx
X. Xxxxxxxxxx (the "Trustee"), not individually, but as Trustee of the
Jasper and Xxxxxx Xxxxxxxxxx Irrevocable Trust, dated September 23,
1990.
RECITALS
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WHEREAS, the Company, Xxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxxxxx,
and the Trustee executed an Amended and Restated Xxxx X. Xxxxxxxxxx &
Son, Inc. Split-Dollar Insurance Agreement Number One on December 31,
2003 (the "Agreement"); and
WHEREAS, pursuant to Paragraph 18 of the Agreement, the parties
thereto have the right to amend or modify the Agreement in whole or in
part by the written agreement of all of the parties; and
WHEREAS, the parties now wish to amend the Agreement in certain
respects;
NOW, THEREFORE, in consideration of the mutual promises made by
the parties herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
AGREEMENT
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1. The first sentence of Paragraph 8 of the Agreement is
hereby deleted in its entirety and the following new sentence is
substituted therefor:
"For each year that this Agreement is in effect, the
Company shall furnish to each Insured an annual report that
includes a statement of the amounts of taxable income reportable
by the Insureds for federal and state income tax purposes as a
result of the Company's payment of the Policies' premiums."
2. Paragraph 10 of the Agreement is hereby deleted in its
entirety and the following new Paragraph 10 is substituted therefor:
"10. Termination of the Agreement During the Lifetime(s) of the
Insured(s).
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(a) Termination Events. This Agreement shall terminate
during the Insured's lifetime (or, in the case of a joint-and-
survivor policy that is subject to the terms of this Agreement,
during the life of the surviving Insured) upon the first to occur
of the following (the "Termination Event"):
(i) Surrender of the Policies by the Company, which
has the sole and exclusive right to surrender;
(ii) Failure of the Company to make a premium payment
as required pursuant to Paragraph 3 hereunder;
(iii) Total cessation of the Company's business; or
(iv) Bankruptcy, receivership, or dissolution of the
Company.
Within ten (10) days after the Termination Event, the Company
shall provide written notice to the Trustee of the occurrence of
the Termination Event. Such notice shall specify the termination
date of this Agreement and also inform the Trustee of the
Trustee's option rights under Paragraph 11 of this Agreement.
(b) Termination By Written Notice. In addition, either
the Company or the Trustee may terminate this Agreement
unilaterally and without cause, so long as no premium under a
Policy is overdue, by written notice to the other party of such
intent to terminate the Agreement. Such termination shall be
effective as of the date specified in such notice."
3. The first sentence of Paragraph 11(a) of the Agreement is
hereby deleted in its entirety and the following new sentence is
substituted therefor:
"For sixty (60) days after the date of the termination of
this Agreement pursuant to Paragraph 10 above, the Trustee shall
have the option to purchase any of the Policies from the
Company."
4. The first sentence of Paragraph 11(b) of the Agreement is
hereby deleted in its entirety and the following new sentence is
substituted therefor:
"If the Trustee fails to exercise such option within such
sixty (60) day period, then the Company may surrender or cancel
the Policies for their cash surrender values, or it may change
the beneficiary designation provisions of the Policies naming
itself or any other person or entity as the revocable beneficiary
thereof, or exercise any other ownership rights in and to the
Policies, without regard to the provisions thereof."
5. Paragraph 15(d)(i) of the Agreement is hereby deleted in
its entirety and the following new Paragraph 15(d)(i) is substituted
therefor:
"(d) Claims Procedures.
(i) For claims procedure purposes, the "Claims
Manager" shall be Xxxx Xxxxxxxx or his/her designee. At
any time, the Company may remove the Claims Manager with or
without cause. Within sixty (60) days of the removal of
the Claims Manager, the Company shall appoint a successor
Claims Manager. The Company shall provide written notice
of such appointment to all of the parties hereto within
sixty (60) days of the appointment of a successor Claims
Manager."
6. The last sentence of Paragraph 15(d)(ii) of the Agreement
is hereby deleted in its entirety and the following new sentence is
substituted therefor:
"The Claims Manager's explanation shall be in writing and
shall be delivered to the claimant within sixty (60) days of the
date on which the claim is filed."
7. The first sentence of Paragraph 15(d)(iii) of the Agreement
is hereby deleted in its entirety and the following new sentence is
substituted therefor:
"The claimant (or his or her duly authorized
representative) shall have sixty (60) days following the
claimant's receipt of the denial of the claim to file with the
Claims Manager a written request for review of the denial."
8. Paragraph 15(d)(iv) of the Agreement is hereby deleted in
its entirety and the following new Paragraph 15(d)(iv) is substituted
therefor:
"(iv) The Claims Manager shall decide the issue on review
and furnish the claimant with a copy of his or her decision
within sixty (60) days of the receipt of the claimant's request
for review of his or her claim. The decision on review shall be
in writing and shall 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
Agreement on which the decision is based."
9. In all other respects, the parties hereby ratify the terms
of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
XXXX X. XXXXXXXXXX & SON, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Its: Vice President of Finance
/s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
/s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
JASPER AND XXXXXX XXXXXXXXXX
IRREVOCABLE TRUST, DATED
SEPTEMBER 23, 1990
By: /s/ XXXX X. XXXXXXXXXX
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Xxxx X. Xxxxxxxxxx, Trustee
