EXHIBIT 10.28
SPLIT DOLLAR AGREEMENT
FIRST AMENDMENT
WHEREAS, THE MEN'S WEARHOUSE, INC., a Texas corporation (hereinafter
referred to as the "Corporation"), XXXXX X. XXXXX (hereinafter referred to as
the "Employee"), and XXXXXX XXXXXX, Trustee of the Xxxxx X. Xxxxx 1995
Irrevocable Trust (hereinafter referred to as the "Owner") entered into a Split
Dollar Agreement (hereinafter referred to as the "Agreement") on May 25, 1995;
and
WHEREAS, the Owner had purchased two insurance policies on the life of
the Employee issued by Pacific Mutual Insurance Company, Policy No. 1A22371330,
dated April 4, 1991, in the face amount of Five Hundred Thousand Dollars and
Policy No. 1A22827080, dated April 4, 1991, in the face amount of Five Hundred
Thousand Dollars (hereinafter referred to as "Pacific Mutual Policies"); and
WHEREAS, both policies were subject to the Agreement; and
WHEREAS, paragraph 11 of the Agreement states that the Agreement may be
amended by a written instrument signed by the parties thereto; and
WHEREAS, the parties to the Agreement wish to approve the exchange of
the two Pacific Mutual Policies for a single Xxxx Xxxxxxx Life Insurance Company
Policy No. 51881001 (hereinafter referred to as "Xxxx Xxxxxxx Policy"), dated
November 8, 2000, in the face amount of One Million Dollars and to affirm the
application of this Agreement to the new Xxxx Xxxxxxx Policy;
NOW, THEREFORE, pursuant to the provisions of paragraph 11 of the
Agreement, the parties to the Agreement hereby adopt the following amendments to
the Agreement:
1. The Corporation and the Owner approve the exchange of the
Pacific Mutual Policies for the Xxxx Xxxxxxx Policy.
2. The Owner, the Employee and the Corporation agree that the
Xxxx Xxxxxxx Policy will be subject to the Agreement and that all
references to the "Policies" in the Agreement are to the Xxxx Xxxxxxx
Policy on and after November 8, 2000.
3. The Corporation, the Employee and the Owner agree that the
premiums paid by the Corporation on the Pacific Mutual Policies as of
the date of the exchange aggregated $88,504 and that such aggregate
premiums plus any premiums paid on the Xxxx Xxxxxxx Policy by the
Corporation shall be the "total amount of the premiums paid by the
Corporation" pursuant to paragraph 6 of the Agreement concerning
collection of death proceeds and paragraph 8 of the Agreement
concerning disposition of Policies on termination of the Agreement
during the lifetime of the Employee.
4. In order to comply with the provisions of IRS Notice
2002-08, the Corporation, the Employee and the Owner hereby completely
amend and restate paragraph 3(a) of the Agreement to read as follows:
"3(a). The Owner will direct the Insurer to provide
the Corporation with copies of premium notices on the
Policies. No later than thirty (30) days prior to the due date
of each Policy's premium, the Corporation shall notify the
Employee and the Owner of the exact amount due from the
Employee hereunder, which shall be an amount equal to the
annual cost of current life insurance protection on the life
of the Employee (prorated if the premium is being paid
monthly), measured by the lower of the Table 2001 rate, as set
forth in Notice 2002-08 (or the corresponding applicable
provision of any future regulations, revenue rulings, notices
or other guidance from the IRS), or the current published
premium rate of the Insurer for annually renewable term
insurance for standard risks as specified in Revenue Ruling
66-110 (or the corresponding applicable provision of any
future regulation, revenue ruling, notice or other guidance of
the IRS). Either the Employee or the Owner, on behalf of the
Employee, shall pay such required contribution to the
Corporation prior to the premium due date. If neither the
Employee nor the Owner makes such timely payment, the
Corporation, in its sole discretion, may elect to make the
Employee's portion of the premium payment, which payment shall
be recovered by the Corporation as provided herein."
IN WITNESS WHEREOF, the parties hereto have executed multiple originals
of this First Amendment to the Agreement as of the 17th day of January, 2002.
THE MEN'S WEARHOUSE, INC., Corporation
By:
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Name:
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Title:
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XXXXX X. XXXXX, Employee
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XXXXXX XXXXXX, Trustee of the
Xxxxx X. Xxxxx 1995
Irrevocable Trust, Owner