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EXHIBIT 10.68
SPLIT-DOLLAR AGREEMENT
THIS AGREEMENT is made and entered into as of the 4th day of June,
1999, by and between Xxxx National Corporation., a Delaware corporation, with
principal offices and place of business in the State of Ohio (the
"Corporation"), and Xx Xxxxxxx, as Trustee of the Xxxxxxx X.
Xxxx Insurance Trust (the "Trust") dated June 2, 1999 (said Trustee and its
successors are hereinafter referred to as the "Trustee").
WITNESSETH:
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WHEREAS, Xxxxxxx X. Xxxx (the "Insured Employee"), as the Chairman and
Chief Executive Officer of the Corporation, is a valued officer, director and
employee of the Corporation, and the Corporation desires to retain him in such
capacity;
WHEREAS, the Insured Employee has established the Trust to provide for
the distribution to the beneficiaries of the Trust of the proceeds of certain
life insurance protection;
WHEREAS, such life insurance protection, payable upon the death of the
Insured Employee (the "Insured"), will be provided under a policy of life
insurance insuring the life of the Insured (the "Policy"), which is described in
Exhibit A attached hereto and by this reference is made a part hereof, and which
was issued by The Nationwide Life Insurance Company (the "Insurer");
WHEREAS, as an inducement to the continued employment of the Insured
Employee with the Corporation, the Corporation desires to assist the Insured
Employee with his personal life insurance program by entering into this
Agreement with the Trustee;
WHEREAS, the Corporation desires to pay the entire amount of the
premium or premiums due on the Policy as an additional employment benefit for
the Insured Employee, on the terms and conditions hereinafter set forth;
WHEREAS, the Corporation wishes to have the Policy collaterally
assigned to it by the Trustee, in order to secure the repayment to the
Corporation of the amounts which it will pay toward the premiums on the Policy
in the form of Collateral Assignment attached hereto as Exhibit 13 and by this
reference is made a part hereof (the "Collateral Assignment`); and
WHEREAS, the Trustee possesses all incidents of ownership in and to the
Policy.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
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1. PURCHASE OF POLICY. The Trustee has purchased the Policy from
the Insurer in the total face amount of $4,000,000. The parties hereto have
taken all necessary actions to cause the Insurer to issue the Policy, and shall
take any further actions which may be necessary to cause the Policy to conform
to the provisions of this Agreement. The parties hereto agree that the Policy
shall be subject to the terms and conditions of this Agreement and of the
Collateral Assignment filed with the Insurer pursuant to Section 4 hereof.
2. OWNERSHIP OF POLICY. The Trustee shall be the sole and
absolute owner of the Policy, and may exercise all ownership rights granted to
the owners thereof by the terms of the Policy, except as may otherwise be
provided herein.
3. PAYMENT OF PREMIUMS.
a. Whether or not the Insured Employee is employed by the
Corporation, on or before the due date of each premium due under the Policy, or
within the grace period provided therein, the Corporation shall pay the full
amount of the premium to the Insurer, and shall, upon request, promptly furnish
the Insured Employee and the Trustee evidence of timely payment of such premium.
The Corporation shall annually furnish the Insured Employee a statement of the
amount of income reportable by the Insured Employee for federal and state income
tax purposes, if any, as a result of the insurance protection provided under the
Policy or for any other reason with respect to the Policy.
b. The financial obligations of the Corporation under this
Agreement shall be limited to the payment of the premium or premiums described
in this Section, and the Corporation does not have or assume any liability or
responsibility with respect to the obligations of the Insurer under the Policy
or otherwise. Without limiting the generality of the foregoing, it is
specifically provided that in the event of the insolvency or other default of
payment by either the Insurer or the Trustee, the Corporation shall have no
responsibility to make any payment to the Trust, the Trustees, the Insured
Employee or any other person or entity to whom either the Insurer or the Trustee
has an obligation, and any person or entity claiming entitlement to payments
under the Policy may look only to the assets of the Insurer and any person or
entity claiming entitlement to payments under the Trust may look only to the
assets of the Trust.
c. Dividends payable under the Policy shall be used to
purchase paid-up additional insurance protection.
4. REPAYMENT OF PREMIUM PAYMENTS TO CORPORATION: COLLATERAL ASSIGNMENT.
The Corporation is entitled, in accordance with the provisions of this
Agreement, to the repayment to it of all of the premium or premiums it pays on
the Policy pursuant to Section 3 hereof. To secure the repayment to the
Corporation of the amount of the premium or premiums on the Policy paid by it
hereunder, the Trustee shall assign the Policy to the Corporation as collateral
under the Collateral Assignment. The Collateral Assignment shall not be
terminated, altered or amended by the Trustee, without the express written
consent of the Corporation.
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5. CORPORATION'S INTEREST IN THE POLICY.
a. The Corporation shall have an interest in the Policy equal
to the amount of all of the premium or premiums it has paid under Section 3
hereof.
b. The Corporation may pledge or assign its interest in the
Policy, subject to the terms and conditions of this Agreement, for the sole
purpose of securing a loan from a third party other than the Insurer or any
affiliate of the Insurer. The amount of such loan, including accumulated
interest thereon, shall not exceed the lesser of(i) the amount of the premium or
premiums on the Policy paid by the Corporation hereunder or (ii) the cash
surrender value of the Policy as of the date of the loan. Interest charges on
such loan shall be paid by the Corporation. If the Corporation so encumbers the
Policy then, upon the death of the Insured or upon termination of this
Agreement, the Corporation shall promptly take all action necessary to secure
the release or discharge of such encumbrance.
c. The Trustee shall name the Corporation as a beneficiary
under the Policy to the extent of the total amount of the premiums paid by the
Corporation hereunder.
6. LIMITATIONS ON TRUSTEE'S RIGHTS IN POLICY.
a. Except as otherwise provided herein, the Trustee shall not
sell, assign, transfer, borrow against, surrender or cancel the Policy, nor
change the beneficiary designation provision thereof as such beneficiary
designation relates to the Corporation's interest in the Policy described in
Section 5 hereof; without, in any such case, the express written consent of the
Corporation.
b. Notwithstanding any provision hereof to the contrary, the
Trustee shall have the right to pledge or assign all of its right, title and
interest in the Policy, subject to the Collateral Assignment. The Trustee may
exercise this right by executing a written assignment delivered to the Insurer
on a form acceptable to the Insurer, and delivering a copy of this form to the
Corporation. Upon receipt of such form, executed by the Trustee and duly
accepted by the assignee thereof, the Corporation shall consent thereto in
writing, and shall thereafter treat such assignee as the sole owner of all of
the Trustee's right, title and interest in and to the Policy, subject to this
Agreement and the Collateral Assignment, all such rights being vested in and
exercisable only by such assignee.
7. COLLECTION OF DEATH PROCEEDS.
a. Upon the death of the Insured, the Corporation shall
cooperate with the Trustee and any other beneficiary or beneficiaries designated
by the Trustee to take whatever action is necessary to collect the death benefit
provided under the Policy; when such benefit has been collected and paid as
provided herein, this Agreement shall thereupon Terminate.
b. Upon the death of the Insured, the Corporation shall have
the unqualified right to receive a portion of such death benefit equal to the
total amount of the premiums paid by it hereunder. The balance of the death
benefit provided under the Policy, if any, shall be paid to
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the Trust or directly to any other beneficiary or beneficiaries designated by
the Trustee, in the manner and in the amount or amounts provided in the
beneficiary designation provision of the Policy. In no event shall the amount
payable to the Corporation hereunder exceed the Policy proceeds payable at the
death of the Insured. No amount shall be paid from such death benefit to the
Trust or to any other beneficiary or beneficiaries designated by the Trustee
until the full amount due the Corporation hereunder has been paid. The parties
hereto agree that the beneficiary designation provision of the Policy shall
conform to the provisions hereof.
c. Notwithstanding any provision hereof to the contrary, in
the event that, for any reason whatsoever, no death benefit is payable under the
Policy upon the death of the Insured and in lieu thereof the Insurer refunds all
or any part of the premium or premiums paid for the Policy, the Corporation
shall have the unqualified right to receive a portion of such refund equal to
the total amount of the premiums paid by the Corporation hereunder, but not in
excess of the amount of such refund. .
8. TERMINATION OF THE AGREEMENT PRIOR TO DEATH OF INSURANCE
a. If the Policy is fully paid up sufficient to maintain
coverage to the Insured's age 95 (using the Insurer's then current mortality and
expense charges and lowest crediting rate for participating policies), and
remains so following termination of this Agreement, then this Agreement shall
terminate during the Insured's lifetime without notice upon the occurrence of
the earliest of the following events: (i) total cessation of the Corporation's
business; (ii) bankruptcy, receivership or dissolution of the Corporation; or
(iii) June 2, 2014, or such other date thereafter on which the Corporation
recovers its entire cost under the Policy.
b. In addition, provided that no premium under the Policy is
overdue, the Trustee may terminate this Agreement by written notice to the
Corporation signed by the Trustee. Such termination shall be effective as of the
date of such notice.
c. Notwithstanding any other provision of this Agreement, (i)
in the event of a "change of control" as that term is defined in Section 6(c) of
the Employment Agreement dated as of December 17, 1998 among the Corporation,
four of its subsidiaries and the Insured Employee as such agreement may be
amended from time to time (the "Employment Agreement") or (ii) upon the
termination of the Insured's employment with such subsidiaries for any reason
not enumerated in Section 6(a)(i), (ii), (iii) or (iv) of the Employment
Agreement (a "termination event"), then:
(A) No later than 5 business days after a change of control of the
Corporation or a termination event, the Corporation shall pay an
additional amount to the Trustee sufficient to enable the Trustee to
pay all additional premiums necessary to provide life insurance
coverage to Insured's age 95 in the amount provided under Section 1 as
of the date of the change of control or a termination event, as the
case may be.
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(B) For purposes of determining the amount of such
additional payment or release necessary to fund the death
benefits described in this Section 8(c), the Insurer's then
current mortality and expense charges and lowest guaranteed
crediting rate for participating policies shall be used.
(C) In the event any payment under (A) causes or is
deemed to cause the Policy to become a "modified endowment
contract" as such term is defined in Section 7702A of the
Internal Revenue Code of 1986, as amended, then upon any
payment of income or excise tax by the Insured Employee or the
Trustee with respect to such Policy, no later than 5 business
days after any such payment the Corporation shall pay an
additional payment to the Insured Employee or the Trustee
sufficient to reimburse the Insured Employee or The Trustee
for such taxes, including any penalties and interest.
(D) In the event any payment under (A) or (C) is
deemed to be taxable income and/or gifts to the Insured
Employee or the Trust pursuant to applicable tax law or
regulation, the Corporation shall furnish the Insured Employee
and the Trustee with written notice of the amount of taxable
income. The Corporation shall further pay additional
compensation to the Insured Employee or the Trustee, as the
case may be, in an amount sufficient to pay any applicable
income taxes, and/or gift taxes, interest and penalties
relating to the payments under (A) and/or (C) and the
additional compensation. In addition, each payment of premium
and payment to the Insured Employee and/or the Trustee under
this Section 8(c) shall constitute a "Payment" under the
provisions of Section 7 of the Employment Agreement.
d. (i) Notwithstanding any other provision of this
Agreement, in the event the Corporation takes any action which causes or is
deemed to cause the Policy to become a "modified endowment contract" as defined
in Section 8(c)(C), then upon payment of income or excise tax by the Trustee
with respect to such Policy, no later than 5 business days after any such action
the Corporation shall pay an additional payment to the Trustee sufficient to
reimburse the Trustee for such taxes, including any penalties and interest.
(ii) In the event any payment by the Corporation
pursuant to Subsection (d)(i) is deemed to be taxable income and/or gifts to the
Insured Employee or the Trust pursuant to applicable tax law or regulation, the
Corporation shall furnish the Insured Employee and the Trustee with written
notice of the amount of taxable income. The Corporation shall further pay
additional compensation to the Insured Employee or the Trustee, as the case may
be, in an amount sufficient to pay any applicable income taxes, and/or gift
taxes, interest and penalties relating to the payment and the additional
compensation. In addition, each payment to the Insured Employee and/or the
Trustee under this Section 8(d) shall constitute a "Payment" under the
provisions of Section 7 of the Employment Agreement.
e. The Corporation and the Trustee each agree not to take any
action without the consent of the other that causes the Policy to become a
"modified endowment contract," as defined in Section 8(c)(C).
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9. DISPOSITION OF THE POLICY ON TERMINATION OF THE AGREEMENT DURING THE
INSURED EMPLOYEE'S LIFETIME.
a. For 60 days after the date of the termination of this Agreement
during the Insured Employee's lifetime, the Trustee shall have the option of
obtaining the release of the Collateral Assignment. To obtain such release, the
Trustee shall repay to the Corporation the total amount of the premium payments
made by the Corporation hereunder. Upon receipt of such amount, the Corporation
shall release the Collateral Assignment, by the execution and delivery of an
appropriate instrument of release.
b. If the Trustee fails to exercise such option within such 60 day
period, then, at the request of the Corporation, the Trustee shall execute any
document or documents required by the Insurer to transfer the interest of the
Trustee in the Policy to the Corporation. Thereafter, the Trustee and the Trust
shall have no further interest in and to the Policy, either under the terms
thereof or under this Agreement, except as specifically provided herein.
Alternatively, the Corporation may enforce its right to be repaid the amount of
the premiums on the Policy paid by it from the cash surrender value of the
Policy under the Collateral Assignment; provided that in the event the cash
surrender value of the Policy exceeds the amount due the Corporation, such
excess shall be paid to the Trustee. Any payments to the Corporation from the
Policy pursuant to the preceding sentence shall first be made from the Policy's
cash value attributable to the paid-up additional life insurance purchased by
the Policy's dividends.
10. INSURER NOT A PARTY. The Insurer shall be fully discharged from its
obligations under the Policy by payment of the Policy death benefit to the
beneficiary or beneficiaries named in the Policy, subject to the terms and
conditions of the Policy. In no event shall the Insurer be considered a party to
this Agreement, or any modification or amendment hereof. No provision of this
Agreement, nor of any modification or amendment hereof, shall in any way be
construed as enlarging, changing, varying, or in any other way affecting the
obligations of the Insurer as expressly provided in the Policy, except so far as
the provisions hereof are made a part of the Policy by the Collateral
Assignment executed by the Trustee and filed with the Insurer in connection
herewith.
11. ERISA PROVISIONS; DETERMINATION OF BENEFITS. CLAIMS PROCEDURE:
ADMINISTRATION. The following provisions of this Agreement are intended to meet
the requirements of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"),
a. The Corporation is hereby designated as the administrator under
this Agreement. The administrator shall have the authority to control and manage
the operation and administration of this Agreement, shall have the sole and
absolute discretion to interpret the provisions of this Agreement including,
without limitation, by supplying omissions from, correcting deficiencies in, or
resolving inconsistencies or ambiguities in, the language of this Agreement) and
shall make any determinations and findings (including factual determinations and
findings) with respect to the rights of the parties hereunder as may be required
for the purposes of this Agreement.
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b. (1) CLAIM. A person who believes that he, she or it is
being denied a benefit to which he, she or it is entitled under this Agreement
(a "Claimant") may file a written request for such benefit with the
Corporation, setting forth his, her or its claim. The request may be addressed
to the Secretary of the Corporation at its then principal place of business.
(2) CLAIM DECISION. Upon receipt of a claim, the Compensation
Committee of the Board of Directors of the Corporation shall provide
the Claimant with a written determination within 90 days. The
Compensation Committee may, however, extend the reply period for an
additional 90 days for reasonable cause. If the claim is denied in
whole or in part, the Compensation Committee shall provide a written
determination setting forth: (a) the specific reason or reasons for
such denial; (b) the specific reference to pertinent provisions of this
Agreement on which such denial is based; (c) a description of any
additional material or information necessary for the Claimant to
perfect his, her or its claim and an explanation why such material or
such information is necessary; (d) appropriate information as to the
steps to be taken if the Claimant wishes to submit the claim for
review; and (e) the time limits for requesting a review under
subsection (3) and for review under subsection (4) hereof.
(3) REQUEST FOR REVIEW. Within 60 days after the receipt by
the Claimant of the written determination described above, the Claimant
may request in writing that the Board of Directors of the Corporation
(the "Board"') review the determination of the Compensation Committee.
Such request must be addressed to the Secretary of the Corporation, at
his then principal place of business. The Claimant or his, her or its
duly authorized representative may, but need not, review the pertinent
documents and submit issues and comments in writing for consideration
by the Board. If the Claimant does not request a review of the
Compensation Committee's determination within such 60-day period, the
Claimant shall be barred and estopped from challenging such
determination.
(4) REVIEW OF DECISION. Within 60 days after the Secretary's
receipt of a request for review, the Board will review the Compensation
Committee's determination. After considering all materials presented by
the Claimant, the Board will provide a written determination setting
forth the specific reasons for the decision and containing specific
references to the pertinent provisions of this Agreement on which the
decision is based. If special circumstances require that the 60-day
period be extended, the Board will so notify the Claimant and will
render the decision as soon as possible, but no later than 120 days
after receipt of the request for review.
c. The Corporation is the named fiduciary under the Agreement.
d. The funding procedure under the Agreement is that all
premiums on the Policy be remitted to the Insurer from the Corporation
when due, as provided in Section 3 of this Agreement.
e. The basis of payment of benefits under the Agreement is the
direct payment of benefits by the Insurer, with such benefits to be
based on the payment of premiums as provided in Section 3 of this
Agreement.
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12. AMENDMENT. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or their respective
successors or assigns, and may not be otherwise terminated except as provided
herein.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and permitted assigns, and the
Trustee, its successors, permitted assigns, heirs, executors, administrators and
beneficiaries.
14. NOTICES. Any notice required or permitted to the given under this
Agreement is to be in writing and either given by personal delivery or deemed to
be delivered three (3) days after deposit, postage pre-paid, in the U.S.
certified or registered mail, return receipt requested, addressed as follows:
If to the Corporation: Xxxx National Corporation
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxx., Xxxx 00000
Attention: General Counsel
with a copy to: Xxxxxxx X. Xxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
If to the Trustee: Xx Xxxxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
or at such other address as is specified in written notice given in the manner
required in this Agreement.
15. NO EMPLOYMENT AGREEMENT. This Agreement shall not be deemed to
constitute a contract of employment between the Corporation and the Insured
Employee, nor shall any provision of this Agreement restrict the right of the
Corporation to discharge the Insured Employee, or restrict the right of the
Employee to terminate employment.
16. GOVERNING LAW. This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of Ohio without regard to conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
counterparts, as of the day and year first above written.
/s/ Xx Xxxxxxx
Date: June 4, 1999 --------------------------------
Trustee of the Xxxxxxx X. Xxxx
Insurance Trust
XXXX NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Title: Senior Vice President
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Exhibit A
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POLICY TERMS
The following life insurance policy is subject to the attached
Split-Dollar Agreement:
Insurer: The Nationwide Life Insurance Company
Insured: Xxxxxxx X. Xxxx
Policy Number: N056058910
Face Amount: $4,000,000
Date of Issue: June 2, 1999
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EXHIBIT B
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COLLATERAL ASSIGNMENT
For value received, Xx Xxxxxxx, as Trustee of the Xxxxxxx X. Xxxx
Insurance Trust under the Trust Agreement dated June 2, 1999 (the "Assignor"),
hereby assigns and transfers to Xxxx National Corporation, a Delaware
corporation (the "Assignee"), Policy Number N056058910 issued by The Nationwide
Life Insurance Company (the "Insurer") and any supplementary contracts issued
in connection therewith (collectively, the "Policy") upon the life of Xxxxxxx X.
Xxxx (the "Insured"), solely to the extent of the lesser of (i) the total of any
and all amounts heretofore or hereafter paid or advanced by the Assignee for the
payment of premiums or a portion of the premiums thereon; or (ii) upon surrender
of the Policy other than upon the death of the Insured, the cash surrender value
of the Policy increased by any outstanding Policy loans to the Trustee (i) or
(ii) shall hereafter be referred to as the "Assignee's Interest"), subject.
to all the terms and conditions of the Policy and to all superior liens, if any,
which the Insurer may have against the Policy. The Assignor by this instrument,
and Assignee by the acceptance of the assignment, hereby agree to the conditions
and provisions herein set forth.
1. The Assignor is the owner of the Policy and may exercise any and all
rights of ownership with respect thereto, except as otherwise specifically
provided herein. It is expressly agreed that only the following specific rights
are included in this assignment and pass by virtue hereof to the Assignee and
may be exercised solely by the Assignee:
(a) The right to collect the net proceeds of the Policy when it becomes
a claim, by the death the Insured, up to the amount of the Assignee's
Interest.
(b) The right to obtain, upon surrender of the Policy by the Assignor,
the amount of the cash surrender proceeds up to the amount of the
Assignee's Interest.
(c) The right to pledge or assign the Policy as security for a loan
from a third party.
2. The Insurer is hereby authorized to recognize the Assignee's claims
to rights hereunder without investigating the reason for any action taken by the
Assignee, or the giving of any notice, or the application to be made by the
Assignee of any amounts to be paid to the Assignee. The receipt of the Assignee
for any sums received shall be a full discharge and release therefor to the
Insurer.
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Executed as of this 4th day of June, 1999.
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Trustee of the Xxxxxxx X. Xxxx Insurance Trust
XXXX NATIONAL CORPORATION
By
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Title:
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