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Exhibit 10.32
SPLIT-DOLLAR AGREEMENT
THIS SPLIT-DOLLAR AGREEMENT (hereinafter referred to as "this
Agreement") is made and entered into to be effective for all purposes as of
December 31, 1998, by and between 2CONNECT EXPRESS, INC. (hereinafter referred
to as "the Corporation"), a Florida corporation, with its principal office and
place of business in Pinellas County, Florida, and XXXXXX X. XxXXXXXX
(hereinafter referred to as "the Employee"), an individual residing in Pinellas
County, Florida.
W I T N E S S E T H:
WHEREAS, the Employee is employed by the Corporation; and
WHEREAS, the Employee desires to provide life insurance protection for
the Corporation during the term of this Agreement in the event of his death, and
has obtained such protection, under a policy of life insurance insuring his life
(hereinafter referred to as "the Policy"), true and accurate excerpts of which
are attached hereto as Exhibit "A", and which has been issued by Provident
Mutual Life Insurance Company (hereinafter referred to as "the Insurer"); and
WHEREAS, during the term of this Agreement, the Corporation is willing
to pay all of the premiums due on the Policy from time to time as an additional
employment benefit for the Employee, on the terms and conditions hereinafter set
forth; and
WHEREAS, the Employee is the owner of the Policy and, as such,
possesses all incidents of ownership in and to the Policy; and
WHEREAS, during the term of this Agreement, the Corporation desires to
be entitled to the death benefit described in Section 1 hereinbelow with respect
to the Policy by virtue of a direct assignment of such death benefit by the
Employee, in order to comply with the terms of that certain Employment Agreement
between the Corporation and the Employee, the same being effective as of
December 31, 1998; and
WHEREAS, the Corporation and the Employee acknowledge and agree that
all of the foregoing statements are true and accurate, and that such statements
constitute integral parts of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the adequacy and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. PURCHASE OF POLICY.
a. The Employee has purchased the Policy from the Insurer, and the
Policy has a total face amount of $1,100,000
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(hereinafter referred to as "the Death Benefit"). The parties have taken all
necessary actions to cause the Insurer to issue the Policy, and shall take any
further action which may be necessary to cause the Policy to conform to the
provisions of this Agreement. The parties agree that the Policy shall be subject
to the terms and conditions of this Agreement and of the direct assignment of
the Death Benefit (hereinafter referred to as "the Assignment") in favor of the
Corporation with respect to the Policy filed with the Insurer.
b. The Policy constitutes a permanent life insurance policy. The
Death Benefit will cause the annual premium for the Policy to exceed the annual
cost of term life insurance protection on the life of the Employee by $15,000
(hereinafter referred to as "Excess Premium"). Each Excess Premium shall be
credited to the cash surrender value of the Policy. The net cash surrender value
of the Policy (i.e., the total cash surrender value less any loans with respect
to the Policy obtained by the Employee) shall at all times be and remain the
sole and exclusive property of the Employee. Each Excess Premium, as well as all
earnings thereon, shall be set aside for the sole benefit of the Employee, and
shall at all times be and remain the sole and exclusive property of the
Employee.
2. OWNERSHIP OF POLICY. The Employee shall be the sole and absolute
owner of the Policy, and may exercise all ownership rights granted pursuant to
the terms of the Policy. The Corporation shall not borrow against the Policy.
3. POLICY DIVIDENDS. The Policy does not, and will not, generate policy
dividends.
4. PAYMENT OF PREMIUMS. During the term of this Agreement, on or before
the due date of each premium with respect to the Policy, or within the grace
period provided by the Policy, the Corporation shall pay the full amount of such
premium to the Insurer, and shall, upon request by the Employee, promptly
furnish the Employee with evidence of the timely payment of such premium. Upon
the termination of this Agreement, the Corporation shall not be obligated to pay
any premiums attributable to periods of time occurring subsequent to the
effective date of such termination.
5. NO REIMBURSEMENT FROM EMPLOYEE/TAXATION OF THE EMPLOYEE. The parties
acknowledge that each annual premium for the Policy shall be the sum of Excess
Premium and an amount equal to the annual cost of term life insurance protection
on the life of the Employee, for each calendar year, or portion thereof,
comprising the term of this Agreement. For the purpose of this Section 5, "the
annual cost of term life insurance protection on the life of the Employee" shall
equal the PS 58 rate set forth in Rev. Rul. 55-747 (or the corresponding
applicable provision of any subsequent Revenue Ruling). The Corporation shall
not seek from the Employee any reimbursement for Excess Premium, for the annual
cost of term life insurance protection on the life of the Employee, or for any
other amount directly or
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indirectly related to the annual premium for the Policy (hereinafter
collectively referred to as "the Reimbursement Arrangement"). As a result of the
Reimbursement Arrangement, the Employee will be required to recognize taxable
income in an amount equal to Excess Premium attributable to each taxable year of
the Employee; consequently, the Corporation shall pay to the Employee a cash
bonus equal to a net amount that is sufficient to pay the Employee's income
taxes attributable to the Reimbursement Arrangement and the Employee's income
taxes attributable to such cash bonus. Such income taxes shall be derived by
utilizing the Employee's highest marginal income tax rate. The Employee shall,
on an annual basis, provide the Corporation with a statement of the amount of
income reportable by the Employee for federal and state income tax purposes as a
result of the Reimbursement Arrangement. The Corporation shall, on an annual
basis, pay to the Employee the aforesaid cash bonus on or before April 15 of
each calendar year.
6. DIRECT ASSIGNMENT. To secure the right of the Corporation to receive
the Death Benefit pursuant to Section 8.a. hereinbelow, the Employee has
assigned, or shall contemporaneously with the execution of this Agreement
assign, the Death Benefit to the Corporation via direct assignment, by properly
executing the Assignment. The Assignment shall not be terminated, altered or
amended by the Employee, without the prior written consent of the Corporation.
The parties agree to take all actions necessary to cause the Assignment to
conform to the provisions of this Agreement.
7. EMPLOYEE'S RIGHTS IN POLICY.
a. The Employee shall be entitled to transfer and borrow against the
Policy, and shall be entitled to change the beneficiary designation provision
thereof to the extent such transfer, borrowing, or change does not affect the
Corporation's right to receive the Death Benefit during the term of this
Agreement; provided, however, the Employee shall not surrender or cancel the
Policy during the term of this Agreement without the prior written consent of
the Corporation.
b. The Employee shall have the right to absolutely and irrevocably
give to a donee all of his right, title and interest in and to the Policy,
subject to the Assignment. The Employee may exercise this right by executing a
written transfer of ownership in the form used by the Insurer for irrevocable
gifts of insurance policies, and by delivering such form to the Corporation.
Upon receipt of such form, executed by the Employee and duly accepted by the
donee thereof, the Corporation shall consent thereto in writing, and shall
thereafter treat the Employee's donee as the sole owner of all of the Employee's
right, title and interest in and to the Policy, subject to this Agreement and
the Assignment. Thereafter, the Employee shall have no right, title or interest
in and to the Policy and all such rights shall be vested in and exercisable only
by such donee.
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8. COLLECTION OF DEATH BENEFIT.
a. During the term of this Agreement, upon the death of the
Employee, the Corporation shall have the unqualified right to receive the Death
Benefit. The Employee's designated beneficiary or beneficiaries shall have the
unqualified right to receive any and all amounts in excess of the Death Benefit,
including the net cash surrender value and the remaining balance of each Excess
Premium. The parties agree that the beneficiary designation provision of the
Policy shall conform to the provisions hereof.
b. Upon the death of the Employee, in the event the Employee is not
employed by the Corporation as of his date of death, regardless of the reason or
reasons with respect to the absence of such employment, or in the event this
Agreement has been terminated for any reason whatsoever prior to the death of
the Employee, the Employee's designated beneficiary or beneficiaries shall have
the unqualified right to receive the Death Benefit, as well as the net cash
surrender value and the remaining balance of each Excess Premium; moreover, the
Corporation shall not have any rights or interest with respect to the foregoing
items. The parties agree that the beneficiary designation provision of the
Policy shall conform to the provisions hereof.
c. The Corporation's receipt of the Death Benefit pursuant to the
provisions of Section 8.a. hereinabove shall be in full and complete
satisfaction of the amounts due to the Corporation pursuant to this Agreement.
d. If necessary, the Corporation and the beneficiary or
beneficiaries designated by the Employee shall cooperate to collect the Death
Benefit.
9. TERMINATION OF THE AGREEMENT DURING THE EMPLOYEE'S LIFETIME.
a. This Agreement shall terminate, during the Employee's lifetime,
upon the occurrence of any of the following events:
(i) total cessation of the Corporation's business;
(ii) bankruptcy, receivership, or dissolution of the
Corporation; or
(iii) termination of the Employee's employment with the
Corporation, for any reason other than his death.
b. In the event this Agreement is terminated for any reason
whatsoever during the Employee's lifetime, the Corporation shall release the
Assignment as of the effective date of such termination in accordance with
Section 10 hereinbelow.
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c. In the event any premium, or any portion thereof, with respect to
the Policy is unpaid in whole or in part at the time of any termination of this
Agreement, said premium shall be paid by the Corporation prior to the effective
termination date.
10. DISPOSITION OF THE POLICY ON TERMINATION OF THIS AGREEMENT DURING
EMPLOYEE'S LIFETIME. During the thirty (30) day period immediately succeeding
the date of the termination of this Agreement during the Employee's lifetime for
any reason whatsoever, the Employee shall be entitled to obtain a release of the
Assignment. Furthermore, in his sole discretion, the Employee, at his sole
expense, shall be entitled to keep the Policy in force by paying the premiums
attributable to periods of time occurring subsequent to such effective
termination date. The Corporation shall release the Assignment by the execution
and delivery of an appropriate instrument of release satisfactory to the
Employee and the Insurer, and such release shall terminate the Corporation's
right to receive the Death Benefit.
11. INSURER NOT A PARTY. The Insurer shall be fully discharged from its
obligations under the Policy by payment of the Death Benefit provided by the
Policy to the beneficiary or beneficiaries named in the Policy, subject to the
terms and conditions of the Policy and the Assignment, and by dealing with
Excess Premium and the net cash surrender value of the Policy pursuant to the
instructions of the Employee during his lifetime, or of the Employee's
designated beneficiary or beneficiaries after his death. 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 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 insofar as the provisions hereof are made a part
of the Policy by the Assignment, as executed by the Employee and filed with the
Insurer in connection herewith.
12. NAMED FIDUCIARY, DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND
ADMINISTRATION.
a. The Corporation is hereby designated as the named fiduciary under
this Agreement. The Corporation, as the named fiduciary, shall have authority to
control and manage the operation and administration of this Agreement, and it
shall be responsible for establishing and carrying out a funding policy and
method consistent with the objectives of this Agreement.
b. Any person who believes that he or she is being denied a benefit
to which he or she is entitled under this Agreement (hereinafter referred to as
"the Claimant") may file a written notice with the Corporation setting forth his
or her claim (hereinafter referred to as "the Claim").
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c. Upon the receipt of the Claim, the Corporation shall advise the
Claimant that a reply (hereinafter referred to as "the Reply") will be
forthcoming within ninety (90) days after said receipt and shall, in fact,
deliver the Reply within such period. The Corporation may, however, extend the
aforesaid period for an additional thirty (30) days for reasonable cause.
d. If the Claim is denied in whole or in part, the Corporation shall
forward to the Claimant the Reply, which shall contain the following
information: (i) the specific reason or reasons for such denial; (ii) the
specific reference to pertinent provisions of this Agreement on which such
denial is based; (iii) a description of any additional material or information
necessary for the Claimant to perfect the Claim and an explanation why such
material or such information is necessary; (iv) appropriate information as to
the steps to be taken if the Claimant wishes to submit the Claim for review; and
(v) the time limits for requesting a review in accordance with Section 12.e.
hereinbelow. The Reply shall be written in language designed to be understood by
the Claimant.
e. Within sixty (60) days after the receipt by the Claimant of the
Reply, the Claimant may request in writing that the Corporation review and
reconsider the determination set forth in the Reply. The Claimant, or the
Claimant's duly authorized representative, shall review the pertinent documents
and submit issues and comments in writing (hereinafter collectively referred to
as "the Comments") for consideration by the Corporation within such sixty (60)
day period. If the Claimant does not request a review of the Corporation's
determination set forth in the Reply by submitting the Comments within such
sixty (60) day period, the Claimant shall be barred and estopped from
challenging the Corporation's determination.
f. Upon receipt of the Comments, the Corporation shall deliver its
written decision ("the Final Decision") to the Claimant within thirty (30) days
after said receipt. The Corporation may, however, extend the aforesaid period
for an additional ten (10) days for reasonable cause. The Final Decision shall
be written in language designed to be understood by the Claimant. In the event
the Claimant disagrees with the Final Decision, in whole or in part, the
Claimant and the Corporation shall attempt to settle the dispute through
mediation or negotiation. If such mediation or negotiation is unsuccessful, the
Claimant and the Corporation shall then be entitled to seek formal legal
redress, including litigation.
13. AMENDMENT. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or their respective
permitted successors or assigns, and may not be otherwise terminated except as
provided herein.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and
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assigns, and the Employee, and his successors, assigns, heirs, executors,
administrators, legal representatives, personal representatives, and
beneficiaries.
15. HEADINGS. The titles and headings of the various sections of this
Agreement are intended solely for convenience of reference and are not intended
to explain, modify or place any interpretation upon any of the provisions of
this Agreement.
16. TIME OF ESSENCE. All times and dates in this Agreement shall be of
the essence.
17. ENTIRE AGREEMENT. This Agreement, which includes the Exhibits,
contains all representations and the entire understanding and agreement between
the parties. Correspondence, memoranda or agreements, whether written or oral,
originating before the date of this Agreement are replaced in total by this
Agreement unless otherwise specifically stated. The term "this Agreement" shall
include the Exhibits, the Policy, and the Assignment referred to in Section 6
hereinabove; furthermore, such documents are deemed an integral part of this
Agreement, and are hereby incorporated by reference and made a part hereof.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. The state courts of Florida
shall have exclusive jurisdiction over any judicial proceeding relating to any
dispute arising out of the interpretation, performance or breach of this
Agreement.
19. SEVERABILITY. If any part of this Agreement is determined to be
illegal or unenforceable, all other parts shall be given effect separately and
shall not be affected.
20. NOTICES. Notices and communications given under this Agreement, and
notices and communications that are required to be given pursuant to this
Agreement, shall be in writing and shall either be delivered personally or
delivered by certified mail, return receipt requested, postage prepaid. Notices
and communications shall be effective upon receipt except as otherwise provided
herein. Notices and communications shall be directed to the parties at the
following addresses:
If to the Corporation: 2Connect Express, Inc.
0000 Xxxx Xxx. X.X.
Xxxxx X
Xxxxx, Xxxxxxx 00000
If to the Employee: Xxxxxx X. XxXxxxxx
0000 Xxxx Xxx. X.X.
Xxxxx X
Xxxxx, Xxxxxxx 00000
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Any party may change such party's address for purposes of this Agreement by
giving written notice of the new address to the other party in accordance with
any medium described hereinabove. Rejection or other refusal to accept delivery,
or the inability to deliver because of changed address of which no notice was
given, shall cause the notice or communication to be effective when sent.
21. GENDER AND NUMBER. As used in this Agreement, the masculine,
feminine or neuter gender, and the singular or plural number, shall each include
the others whenever the context so indicates.
22. ADDITIONAL DOCUMENTS. Each party agrees to execute and acknowledge,
if required, any and all other documents and writings which may be necessary to
carry out the purposes and provisions of this Agreement.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24. NONWAIVER. No assent or waiver, express or implied, of any breach
of any one or more of the covenants, conditions or provisions of this Agreement
shall be deemed a waiver of any subsequent breach, or a waiver of any other
covenant, condition or provision of this Agreement.
25. INTERPRETATION. The language used in this Agreement shall not be
construed in favor of or against any party, but shall be construed as if all of
the parties prepared this Agreement. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
26. ATTORNEYS' FEES. In the event of any legal or equitable proceeding
for enforcement of any of the terms or conditions of this Agreement, or in the
event of any disputes, breaches, defaults or misrepresentations in connection
with any provision of this Agreement, the prevailing party in such action or
with respect to such dispute, breach, default, or misrepresentation, or the
nondismissing party where the dismissal occurs other than by reason of a
settlement, shall be entitled to recover its reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and costs of defense
or enforcement paid or incurred in good faith. For the purposes of this
Agreement the term "prevailing party" shall be deemed to be the party that
obtains substantially the result sought, whether by settlement, dismissal or
judgment. For the purposes of this Agreement, the term "attorneys' fees and
costs" shall include, without limitation, the actual attorneys' fees incurred in
retaining counsel for advice, suit, appeal, or any other legal proceedings
(including mediation and arbitration).
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date or dates set forth hereinbelow to be effective for all purposes as of the
Effective Date.
2CONNECT EXPRESS, INC.
/s/ Xxxxxxx Xxxxxx Xxxx By: /s/ Xxxxxx X. XxXxxxxx
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Signature of Witness Xxxxxx X. XxXxxxxx, as its
Chief Executive Officer
Xxxxxxx Xxxxxx Xxxx
----------------------------------
Printed Name of Witness Date: 2/10/99
/s/ Xxxxx Xxxxxx
----------------------------------
Signature of Witness
Xxxxx Xxxxxx
----------------------------------
Printed Name of Witness
/s/ Xxxxxxx Xxxxxx Xxxx By: /s/ Xxxxx X. Xxxxx
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Signature of Witness Xxxxx X. Xxxxx, as its
President
Date: 2/10/99
Xxxxxxx Xxxxxx Xxxx
----------------------------------
Printed Name of Witness
/s/ Xxxxx Xxxxxx
----------------------------------
Signature of Witness
Xxxxx Xxxxxx
----------------------------------
Printed Name of Witness
/s/ Xxxxxxx Xxxxxx Xxxx /s/ Xxxxxx X. XxXxxxxx
---------------------------------- -----------------------------------
Signature of Witness Xxxxxx X. XxXxxxxx, individually
Date: 2/10/99
Xxxxxxx Xxxxxx Xxxx
----------------------------------
Printed Name of Witness
/s/ Xxxxx Xxxxxx
----------------------------------
Signature of Witness
Xxxxx Xxxxxx
----------------------------------
Printed Name of Witness
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INSURED Xxxxxx X. XxXxxxxx
12/15/1998 POLICY ISSUE DATE
POLICY NUMBER 9,082,024
58, Male ISSUE AGE AND SEX
FACE AMOUNT $1,100,000.00
12/15/1998 POLICY DATE
DEATH BENEFIT Option B
PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA agrees:
o To pay the Beneficiary of this Policy the Insurance Proceeds upon
receiving due proof of the Insured's death;
o To provide you (the Policy Owner) with the other rights and
benefits of this Policy.
These agreements are subject to the provisions of this Policy.
The amount of the Death Benefit or the duration of the insurance coverage, or
both, may be variable or fixed, as described on page 9.
The portion of the Policy Account Value that is in a Separate Account may
increase or decrease, depending upon the unit value of such Separate Account,
which in turn depends upon the investment experience of the corresponding
portfolio of a designated investment company. The investment options for this
Policy are described on page 6. There is no guaranteed minimum for the portion
of your Policy Account Value is the Separate Accounts.
The portion of the Policy Account Value that is in the Guaranteed Account and
the Loan Account will accumulate after deductions, at rates of interest we
determine. Such rates will not be less than 4% a year.
Please read this Policy with care. A guide to its provisions is on the last
page. A description is on page 2. Any additional benefit riders and a copy of
the Application are included in this Policy after page 19.
This is a legal contract between the Owner and Provident Mutual Life Insurance
Company of Philadelphia.
RIGHT TO EXAMINE POLICY. You may examine this Policy and if for any reason you
are not satisfied with it, you may cancel it by returning the Policy to us with
a written request no later than: (a) 30 days after you receive it; (b) or 45
days after Part I of the Application was signed. All you have to do is take
this Policy or mail it to our Home Office at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or to one of our offices or to the
representative who sold it to you. If you do this, we will refund an amount
equal to: (a) the difference between the premiums you paid (including any fees
and charges) and the sum of the amounts allocated to the Guaranteed Account and
the Separate Accounts; plus (b) the value of the amounts allocated to the
Guaranteed Account including any interest accumulated to the date you return
the Policy to us; plus (c) the value of the amounts allocated to the Separate
Accounts including the net investment experience of such Separate Accounts to
the date you return the Policy to us; plus (d) any fees or charges imposed on
the amounts allocated to the Guaranteed Account or the Separate Accounts.
Attest
/s/ Xxxxxx X. Xxxxx
President and Chief Executive Officer
Registrar
Flexible Premium Adjustable Variable Life Insurance Policy.
Insurance Proceeds payable upon death before Final Policy Date.
Policy Account Value payable on Final Policy Date.
Adjustable Death Benefit.
Values provided by this Policy are based on declared interest rates
of the Guaranteed and Loan Accounts on the
investment experience of the Separate Accounts.
Participating.
For Inquiries, Information and Resolution of Complaints Call: 0-000-000-0000
Exhibit "A"
Form C126(FL)
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POLICY SCHEDULE
INSURED Xxxxxx X. XxXxxxxx
POLICY NUMBER 9,082,024 12/15/1998 POLICY ISSUE DATE
FACE AMOUNT $1,100,000.00 58, Male ISSUE AGE AND SEX
DEATH BENEFIT Option B 12/15/1998 POLICY DATE
PREMIUM CLASS Standard 12/15/2040 FINAL POLICY DATE
BENEFITS
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FLEXIBLE PREMIUM VARIABLE LIFE INSURANCE
INITIAL FACE AMOUNT $1,100,000.00
This Policy provides life insurance coverage on the insured until the final
policy date, provided the Net Cash Surrender Value is sufficient to cover the
deductions for the cost to that date of the benefits of this Policy and of any
riders. You may have to pay more than the premiums shown below to keep this
Policy and coverage in force to that date, and to keep any additional riders in
force.
MINIMUM INITIAL PREMIUM - $3,774,.33
PLANNED PERIODIC PREMIUM - $2,859.67 PAYABLE MONTHLY
MINIMUM ANNUAL PREMIUM - $22,646.00
MINIMUM FACE AMOUNT - $100,000.00 AFTER 10TH POLICY YEAR
MINIMUM PAYMENT - $25.00
PARTIAL WITHDRAWAL - MINIMUM AMOUNT $1,500.00
TRANSFERS - MINIMUM AMOUNT $500.00
POLICY LOAN - FIXED 6.00% POLICY LOAN INTEREST RATE
MINIMUM LOAN AMOUNT - $500.00
Form C126
