EXHIBIT 10.2
SUPPLEMENTAL BENEFIT AND COLLATERAL ASSIGNMENT
SPLIT-DOLLAR AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into and shall be
effective as of the 18th day of January, 1997 by and between TRANSFINANCIAL
HOLDINGS, INC. (The "Employer") and XXXXXXX X. X'XXXX (the "Employee).
RECITALS
WHEREAS, Employee is now, and has agreed to continue as, an executive
officer of Employer, and
WHEREAS, Employer has agreed to provide a supplemental benefit to Employee
upon his death, disability or retirement, and as otherwise provided herein, and
WHEREAS, the parties hereto desire to set forth all of the terms of their
agreement with respect to such supplemental benefit.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter contained, the parties hereto do hereby agree as
follows:
AGREEMENTS
1. For as long as Employee is insurable under the life insurance policy
hereinafter referred to, and is an executive officer of Employer, and
until the earlier of Employee's retirement, permanent disability or
death, Employer agrees to timely and promptly pay (or provide to
Employee the funds with which to pay) the installment premiums on a
life insurance policy (the "Policy") selected by, insuring the life
of, and owned by, Employee, with an initial death benefit in the
amount of $532,968. Subject to the provisions of this Agreement,
Employee shall, at all times, have the right to designate the
beneficiary or beneficiaries to whom the death benefits of the Policy
shall be payable.
2. Employee shall be eligible to retire from employment with Employer
upon having completed 10 years employment with Employer and having
attained at least age 50, or at such other time as Employee shall
become permanently disabled. For purposes of this agreement, Employee
shall be deemed permanently disabled if, by a mental or physical
incapacity, it is impossible for Employee to perform, for 180
consecutive days or more, the duties and services being provided to
Employer by Employee immediately prior to such disability. Such
determination shall be made by a licensed medical doctor designated by
the Employer and reasonably acceptable to Employee, or on evidence
that the Employee is eligible for Social Security disability payments.
Permanent disability shall exclude disability arising from chronic or
excessive use of intoxicants, drugs or narcotics, or intentionally
self-inflicted injury or self-induced sickness.
3. a. If the Employee's employment with the Employer terminates for any
reason other than retirement, death, permanent disability or discharge
by Employer without cause, except as provided in sub paragraph b.
hereof Employee shall, without further consideration, assign to
Employer all of his rights in, and full ownership of, the Policy, and
all of Employee's rights under this Agreement shall terminate and be
of no further force or effect. For purposes hereof, the term "cause"
shall mean a material breach of the provisions of this Agreement;
breach of Employee's duty of loyalty or other fiduciary duty to
Employer; fraud against Employer or misappropriation of Employer's
assets; theft; or conviction of a crime involving drug abuse,
violence, dishonesty or theft.
b. Notwithstanding the provisions of sub paragraph a. hereof, if
Employee's employment shall terminate other than by retirement,
permanent disability, death or discharge with or without cause,
Employee shall be entitled, for each period of twelve months from the
date of hire, to 10% of the excess, if any, of the cash surrender
value of the Policy, at the date of such termination over the
aggregate cost of the Policy therefore incurred by Employer in the
payment of premiums therefore, which latter amount shall be
immediately due and payable to Employer.
4. Upon the death of the Employee, or the earlier surrender and
cancellation of the Policy by him subsequent to his retirement,
permanent disability or termination without cause, Employer shall be
promptly paid, from the death benefits or cash surrender value of the
Policy, the lessor of the cash surrender value of the policy or the
aggregate cost theretofore incurred by it in the payment of the
premiums therefor. In such event, all portions of the death benefits
or cash surrender value of the Policy, in excess of the amount due to
the Employer, shall be the property of and shall be distributed to
Employee or such beneficiary or beneficiaries as he shall have
designated. Employee may not, without Employer's prior written
consent, cancel or surrender the policy prior to his retirement,
permanent disability or discharge without cause.
5. Employee hereby agrees, upon issuance of the Policy, to deliver the
same to Employer, to grant to Employer a security interest in the
Policy, and the cash surrender value and death benefits payable
thereunder, to secure the obligation to repay to Employer the amount
provided in Paragraphs 3.b and 4 hereof. The Employee further agrees,
upon the issuance of such policy, to make, execute and deliver to
Employer and to the issuer of the Policy such documents as Employer or
such issuer may reasonably request to evidence and perfect such
collateral assignment. Prior to assignment of the Policy to Employer
pursuant to Paragraph 3, hereof, the Employer's only rights in the
Policy shall be those of a secured creditor.
6. Employee shall not take any action which would have the effect of
lessening or prejudicing Employer's rights pursuant to Paragraphs 3.b,
4 and 5 hereof, and, specifically, Employee shall not borrow against
the Policy unless he shall contemporaneously pay, from such
borrowings, to Employer the amount then due it hereunder for premiums
theretofore paid.
7. Prior to the assignment of the Policy pursuant to Paragraph 3 hereof,
the Employee shall have the sole right to surrender or cancel the
policy, but no such surrender or cancellation may be made, without the
prior written consent of the Employer, prior to retirement, death,
permanent disability or discharge without cause.
8. This Agreement contains the entire understanding and agreement of the
parties hereto with respect to the subject matter hereof, and may not
be amended, altered or modified except by a subsequent written
instrument signed by the parties hereto.
9. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors, heirs, personal
representatives and beneficiaries. This Agreement, and the rights and
benefits hereof, shall not be assigned, transferred, pledged, conveyed
or encumbered in any way by Employee, and shall not be subject to
execution, attachment or similar process.
10. This Agreement shall be subject to and construed in accordance with
the laws of the state of Kansas.
11. The issuer of the Policy is not a party to this Agreement, and none of
the terms and provisions hereof shall be in any way binding upon it.
Such issuer's obligations shall be only as stated in the Policy. A
copy of any communication between either of the parties hereto and the
issuer of such Policy shall be promptly delivered to the other party
hereto. Such delivery, and any other notice or communication to either
of the parties hereto, may be personally made to such party, or
forwarded by United States mail, postage pre-paid, addressed to the
Employer at its principal executive office, and to Employee at the
last known address shown on the records of the employer.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the day and year first above written.
TRANSFINANCIAL HOLDINGS, INC.
By: /s/Xxx X. Xxxxxxx
Xxx X. Xxxxxxx
By: /s/Xxxxxxx X. X'Xxxx
Xxxxxxx X. X'Xxxx
