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EXHIBIT 10.55
AMENDED AND RESTATED SPLIT DOLLAR AGREEMENT AND COLLATERAL
ASSIGNMENT
THIS AMENDED AND RESTATED SPLIT DOLLAR AGREEMENT AND
COLLATERAL ASSIGNMENT (the "Agreement") made and effective as of September 1,
1999, by and between the Xxxxx Xxxxxxx 1995 Irrevocable Life Insurance Trust
u/a/d August 2, 1995 (the "Xxxxxxx Life Insurance Trust") and PRECISION RESPONSE
CORPORATION, a Florida corporation (the "Company") (whose address is 1505 N.W.
167 Street, Miami, Florida, 33169).
WHEREAS, the Xxxxxxx Life Insurance Trust is the owner of a
certain life insurance policy (the "Policy") issued on September 1, 1995, by New
York Life Insurance Company (the "Insurance Company") on the life of Xxxxx X.
Xxxxxxx (the "Grantor" or "Xxxxx X. Xxxxxxx");
WHEREAS, pursuant to that certain Split Dollar Agreement and
Collateral Assignment (the "1999 Agreement") dated on or around May 17, 1999,
between the Trustees of the Xxxxxxx Life Insurance Trust and the Company, the
Company has contributed a portion of the premiums due on the Policy;
WHEREAS, pursuant to ARTICLE 14 of the 1999 Agreement, the
Xxxxxxx Life Insurance Trust and the Company desire to amend and restate in its
entirety the 1999 Agreement;
WHEREAS, the Grantor is employed by the Company pursuant to
that certain Employment Agreement (the "Employment Agreement") dated as of May
15, 1996, between the Grantor and the Company, as amended by the Amendment to
Employment Agreement dated as of April 1, 1999, between the Grantor and the
Company;
WHEREAS, the Company desires to contribute a portion of the
premiums due on the Policy under a continuing "Split Dollar" arrangement;
WHEREAS, the Xxxxxxx Life Insurance Trust will continue to be
the owner of the Policy subject to the terms of this Agreement; and
WHEREAS, the Policy will be collaterally assigned to the
Company as security for the repayment of the amounts which the Company has
contributed or will contribute as premiums due on the Policy, all as more fully
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement, the parties hereby amend and restate in its
entirety the 1999 Agreement as follows:
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ARTICLE 1
INSURANCE POLICY
The Xxxxxxx Life Insurance Trust has obtained the Policy on
the Grantor's life in the total face amount of $1,500,000. The policy number,
type of policy, face amount and plan of payments contained in the Policy are
recorded on Schedule A attached hereto and the parties hereto agree that the
Policy is held subject to the terms of this Agreement.
ARTICLE 2
OWNERSHIP OF INSURANCE
The Xxxxxxx Life Insurance Trust is and shall continue to be
the owner of the Policy and may exercise all rights of ownership with respect to
the Policy, except as to the limited security interest in the Policy
specifically granted to the Company herein. Subject to such security interest of
the Company, the rights reserved to the Xxxxxxx Life Insurance Trust include
specifically the right to change the beneficiaries of the Policy, the right to
surrender the Policy, the right to assign the Policy or revoke such an
assignment, and the right to pledge the Policy for a loan or to obtain a loan
from the Insurance Company against the surrender value of the Policy.
ARTICLE 3
PREMIUM
When used in this Agreement the words "the Premium" shall mean
and refer to the semi-annual premium shown on Schedule A attached hereto, or
such other semi-annual amounts as the parties hereto may from time to time agree
in writing to pay to the Insurance Company with respect to the Policy; provided,
however, that in no event shall the Premium be less than the smallest
semi-annual payment necessary to keep the Policy in full force and effect.
ARTICLE 4
PAYMENT OF PREMIUMS ON POLICY
A. The Company shall pay either directly to the Insurance
Company or by making the necessary funds therefor available to the Xxxxxxx Life
Insurance Trust the Premium when due less the amounts due from the Xxxxxxx Life
Insurance Trust pursuant
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to the provisions of Section B of this ARTICLE 4. The Premium may be paid under
any payment method acceptable to the Company and the Insurance Company.
B. The Xxxxxxx Life Insurance Trust shall pay that portion of
each semi-annual premium equal to the cost (calculated by application of the
lower of the Internal Revenue Service's U.S. Life Table 58 rate or the Insurance
Company's annual term insurance rate on the life of the Grantor) of the
insurance proceeds which the beneficiary or beneficiaries named by the Xxxxxxx
Life Insurance Trust would be entitled to receive if the Grantor died during
that policy year (before any reduction for any repayments to be made to the
Company pursuant to this Agreement).
ARTICLE 5
XXXXXXX LIFE INSURANCE TRUST'S OBLIGATION TO COMPANY
A. The Xxxxxxx Life Insurance Trust must repay to the Company
the aggregate amount paid by the Company under Section A of ARTICLE 4 of this
Agreement as premiums on the Policy (such amount being hereinafter referred to
as the "Net Payment Amount") in accordance with ARTICLE 7, Section A of ARTICLE
8, Section A of ARTICLE 9, and ARTICLE 11 of this Agreement (as the case may
be), subject, however, to the provisions of Section B of this ARTICLE 5.
B. Notwithstanding anything in this Agreement to the contrary,
the Xxxxxxx Life Insurance Trust shall not be required to repay to the Company
any part or all of the Net Payment Amount in the event of the termination of
Grantor's employment with the Company by reason of any one or more of the
following events (hereinafter referred to individually in this Agreement as a
"Vesting Event"):
1. The termination of Grantor's employment as a
result of Grantor's disability (as such term is defined in paragraph 7(b) of the
Employment Agreement);
2. The voluntary resignation of Grantor from
employment by Company (a) in connection with a Change in Control of Company (as
defined in paragraph 1 of Section B of ARTICLE 7 hereof) or (b) due to Grantor's
attainment of normal retirement age of sixty-five (65) years;
3. The termination of Grantor's employment as a
result of Grantor's Constructive Termination (as defined in paragraph 7(e) of
the Employment Agreement);
4. The involuntary termination of Grantor's
employment by Company for any reason not set forth in paragraph 7 of the
Employment Agreement; and/or
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5. The failure or refusal by Company to renew the
term of the Employment Agreement pursuant to paragraph 2 thereof or to renew or
continue any successor employment agreement (other than in connection with (a)
the occurrence of a Termination Event (as defined in Section A of Article 7
hereof); (b) the death of Grantor or (c) Grantor entering into a successor
employment agreement with the Company acceptable to Grantor in his sole
discretion).
C. Immediately upon the occurrence of a Vesting Event:
1. The Company shall release the collateral
assignment of the Policy made by the Xxxxxxx Life Insurance Trust to the Company
pursuant to ARTICLE 6 hereof;
2. The Xxxxxxx Life Insurance Trust's obligations to
the Company under Section A of this ARTICLE 5 shall terminate and cease forever;
3. The Company shall have no right, title and
interest in and to the Policy, including without limitation by way of ARTICLE 7,
Section A of ARTICLE 8, Section A of ARTICLE 9 and/or ARTICLE 11 hereof; and
4. The obligation of the Company under Section A of
ARTICLE 4 hereof shall be funded as and when, to the extent and for the period
required under paragraph 8 of the Employment Agreement consistent with such
obligation being a benefit of Grantor which Grantor is entitled to receive under
such paragraph 8 upon the termination of his employment with the Company by
reason of a Vesting Event. Upon the funding of the required amount of the
Company's obligation under Section A of ARTICLE 4 hereof, the Company shall have
no further obligations hereunder.
ARTICLE 6
ASSIGNMENT OF POLICY
The Xxxxxxx Life Insurance Trust hereby collaterally assigns,
and grants a security interest in, all of its right, title and interest in and
to the Policy to the Company as security for repayment of the Net Payment
Amount. Such collateral assignment shall not be altered or changed without the
written consent of the Company.
ARTICLE 7
CLAIMS UPON TERMINATION OF EMPLOYMENT
A. The Xxxxxxx Life Insurance Trust must repay to the Company
the Net Payment Amount less any repayments made by the Xxxxxxx Life Insurance
Trust to the Company prior to the occurrence of a Termination Event (as
hereinafter defined) upon the
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termination of Grantor's employment by Company by reason of any one or more of
the following events (hereinafter referred to individually in this Agreement as
a "Termination Event"):
1. The termination of Grantor's employment by Company
for cause pursuant to paragraph 7(c) of the Employment Agreement; and/or
2. The voluntary resignation by Grantor from
employment by Company pursuant to paragraph 7(d) of the Employment Agreement
(other than any such resignation resulting in the occurrence of a Vesting
Event).
B. As used in this Agreement:
1. A "Change in Control of Company" means that (i)
neither Xxxx X. Xxxxxx (for these purposes, counting all common stock directly
or indirectly beneficially owned by Xxxx X. Xxxxxx'x Affiliates (as hereinafter
defined)) nor Xxxxx X. Xxxxxxx (for these purposes, counting all common stock
directly or indirectly beneficially owned by Xxxxx X. Xxxxxxx'x Affiliates)
beneficially owns at least ten (10%) percent of the issued and outstanding
common stock of Company (or its successor); (ii) neither Xxxx X. Xxxxxx (for
these purposes, counting all common stock directly or indirectly beneficially
owned by Xxxx X. Xxxxxx'x Affiliates) nor Xxxxx X. Xxxxxxx (for these purposes,
counting all common stock directly or indirectly beneficially owned by Xxxxx X.
Xxxxxxx'x Affiliates) is the stockholder of Company (or its successor)
beneficially owning the highest number of issued and outstanding shares of
common stock of Company (or its successor); or (iii) Xxxx X. Xxxxxx and/or Xxxxx
X. Xxxxxxx do not occupy the positions of Chairman of the Board and Chief
Executive Officer of Company (or its successor).
2. "Affiliate" means, with respect to Xxxx X.
Xxxxxx or Xxxxx X. Xxxxxxx, an Immediate Family Member (as hereinafter defined)
of his, a trust principally for his benefit and/or the benefit of his Immediate
Family Members and/or lineal descendants, or a family limited partnership or any
other entity the direct or indirect beneficial or pecuniary owners of which are
principally him, his Immediate Family Members and/or trusts or other entities
principally for the benefit of him, his Immediate Family Members and/or lineal
descendants.
3. "Immediate Family Members" means, with respect to
Xxxx X. Xxxxxx or Xxxxx X. Xxxxxxx, his spouse, children, parents, siblings or
other lineal descendants.
C. The repayment pursuant to Section A of this ARTICLE 7 must
be made within one (1) year from the date of the Termination Event; provided,
however, that upon receipt of such repayment, the Company shall release the
collateral assignment of the Policy made by the Xxxxxxx Life Insurance Trust to
the Company pursuant to ARTICLE 6 of this Agreement and the Company shall have
no further right, title and interest in and to the Policy. The receipt by the
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Company of the Company Net Payment Amount shall constitute satisfaction of the
Xxxxxxx Life Insurance Trust's obligation under Section A of ARTICLE 5 hereof
and this ARTICLE 7.
ARTICLE 8
DEATH CLAIMS
A. When the Grantor dies, the Company shall be entitled to
receive a portion of the death benefits provided under the Policy; provided,
however, that a Vesting Event shall not have occurred prior to the death of the
Grantor, in which event the Company shall not receive any part or all of the
death benefits provided under the Policy. The amount to which the Company shall
be entitled shall be the Net Payment Amount less any repayments made by the
Xxxxxxx Life Insurance Trust to the Company prior to the death of the Grantor;
provided, however, that upon receipt of such amount by the Company, the Company
shall release the collateral assignment of the Policy made by the Xxxxxxx Life
Insurance Trust to the Company pursuant to ARTICLE 6 of this Agreement. The
receipt of such amount by the Company shall constitute satisfaction of the
Xxxxxxx Life Insurance Trust's obligation under Section A of ARTICLE 5 of this
Agreement. To the extent, if any, the death benefits under the Policy are
insufficient to pay in full the Net Payment Amount less any repayments made by
the Xxxxxxx Life Insurance Trust to the Company prior to the death of the
Grantor, the Xxxxxxx Life Insurance Trust shall be liable to the Company for the
amount of such insufficiency.
B. When the Grantor dies, the beneficiary or benefi ciaries
named by the Xxxxxxx Life Insurance Trust (or by its assignees) shall be
entitled to receive the amount, if any, of the death benefits provided under the
Policy in excess of the amount, if any, payable to the Company under Section A
of this ARTICLE 8. Such amount shall be paid under the settlement option elected
by the Xxxxxxx Life Insurance Trust (or by its assignees).
C. If any interest is due upon the death benefits provided
under the Policy, the Company and the beneficiary or beneficiaries named by the
Xxxxxxx Life Insurance Trust (or by its assignees) shall share such interest in
the same proportions as their respective shares of such death benefits (as
provided in Sections A and B, respectively, of this ARTICLE 8) shall bear to the
total death benefits provided under the Policy excluding such interest.
D. If, upon the death of the Grantor, there is a refund of
unearned premium under the Policy, then any such refund shall be divided between
the Company (provided, however, that a Vesting Event shall not have occurred
prior to the death of the Grantor, in which event the Company shall not receive
any part or all of such refund under the Policy) and the beneficiary or
beneficiaries named by the Xxxxxxx Life Insurance Trust (or by its assignees) in
the same
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proportions as their respective shares of the last premium payment made by the
Company and the Xxxxxxx Life Insurance Trust, respectively.
ARTICLE 9
DIVISION OF THE NET CASH SURRENDER
VALUE OF THE POLICY
A. If the Policy is surrendered (which the then Trustees of
the Xxxxxxx Life Insurance Trust, in their sole discretion, shall have the right
to do at any time), the Company shall thereupon be entitled to receive the Net
Payment Amount less any repayments made by the Xxxxxxx Life Insurance Trust to
the Company prior to such surrender; provided, however, that a Vesting Event
shall not have occurred prior to such surrender, in which event the Company
shall not receive any part or all of the Net Payment Amount. To the extent, if
any, the net cash surrender value of the Policy is insufficient to pay in full
the Net Payment Amount less any repayments made by the Xxxxxxx Life Insurance
Trust to the Company prior to such surrender, the Xxxxxxx Life Insurance Trust
shall be liable to the Company for the amount of such insufficiency.
B. The Xxxxxxx Life Insurance Trust (or its assignees), shall
be entitled to receive any balance of the net cash surrender value of the
Policy.
ARTICLE 10
TERMINATION OF AGREEMENT
This Agreement shall terminate when any of the following
events occur:
A. Termination of the Xxxxxxx Life Insurance Trust;
B. Upon the election of the aggrieved party, if either the
Company or the Xxxxxxx Life Insurance Trust shall fail for any reason to make
payment of any portion of the Premium due on the Policy as required by ARTICLE 4
of this Agreement on or prior to the due date thereof; provided, however, that
any election to terminate this Agreement under this Section B must be made
within ninety (90) days after the failure to make the required payment occurs;
and provided further, however, that the election to terminate this Agreement by
the Xxxxxxx Life Insurance Trust shall be in addition to all of the other rights
and remedies at law or in equity of the Xxxxxxx Life Insurance Trust against the
Company for its failure to pay any portion of the Premium it was required to
make; or
C. Full repayment by the Xxxxxxx Life Insurance Trust of the
Net Payment Amount; provided, however, that a Vesting Event shall not have
occurred prior to such repayment, in which event the Company shall not receive
any part or all of the Net Payment Amount.
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ARTICLE 11
DISPOSITION OF POLICY ON
TERMINATION OF AGREEMENT
If the Policy is surrendered by the then Trustees of the
Xxxxxxx Life Insurance Trust or this Agreement is terminated under Section A or
Section B of ARTICLE 10 hereof, the Xxxxxxx Life Insurance Trust shall have one
hundred twenty (120) days in which to repay to the Company the Net Payment
Amount less any repayments made by the Xxxxxxx Life Insurance Trust to the
Company prior to the termination of this Agreement; provided, however, that a
Vesting Event shall not have occurred prior to such termination, in which event
the Company shall not receive any part or all of the Net Payment Amount. Upon
receipt of such amount, the Company shall release the collateral assignment of
the Policy made by the Xxxxxxx Life Insurance Trust to the Company pursuant to
ARTICLE 6 of this Agreement. If the Xxxxxxx Life Insurance Trust does not repay
such amount within such one hundred twenty (120) day period, the Company may
enforce its rights against the Xxxxxxx Life Insurance Trust under this Agreement
in any way it sees fit, subject, however, to the Xxxxxxx Life Insurance Trust's
right to set off against any claim made by the Company any damages suffered by
or claims of the Xxxxxxx Life Insurance Trust to the extent this Agreement was
terminated by the Xxxxxxx Life Insurance Trust pursuant to Section B of ARTICLE
10 hereof.
ARTICLE 12
INSURANCE COMPANY A PARTY
The Insurance Company is a party to this Agreement and hereby
acknowledges and agrees to be bound by the terms and provisions hereof,
including without limitation the provisions of ARTICLE 5 and ARTICLE 6 hereof,
and shall be fully discharged from any and all liability under the terms of any
policy issued by it, which is subject to the terms of this Agreement, upon
payment or other performance of its obligations in accordance with the terms and
provisions of such policy and this Agreement.
ARTICLE 13
ASSIGNMENT BY XXXXXXX LIFE INSURANCE TRUST AND COMPANY
The Company is prohibited from assigning its right, title or
interest in and to the Policy (or any portion thereof) to anyone other than the
Xxxxxxx Life Insurance Trust (or its assignees).
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ARTICLE 14
AMENDMENT OF AGREEMENT
This Agreement shall not be modified or amended except by a
written agreement signed by the Company and the Xxxxxxx Life Insurance Trust.
This Agreement shall be binding upon the successors and assigns of each party
hereto.
ARTICLE 15
GOVERNING LAW
This Agreement shall be deemed a contract made under the laws
of, executed and delivered in the State of Florida, and for all purposes shall
be construed and interpreted in accordance with the laws of such State without
reference to conflicts of laws principles.
ARTICLE 16
ATTORNEYS' FEES
In the event that either party to this Agreement institutes
suit against any other party to this Agreement to enforce or declare any of
their respective rights or obligations hereunder, the prevailing party in such
action shall be entitled to recover from the other party all reasonable costs
thereof, including reasonable attorneys' and paralegals' fees and costs incurred
before and at trial and at all tribunal levels, and whether or not suit or any
other proceeding is instituted.
ARTICLE 17
ENTIRE AGREEMENT
This Agreement constitutes the entire final agreement among
the parties with respect to, and supersedes any and all prior and
contemporaneous agreements between or among the parties hereto both oral and
written (including, without limitation, the 1999 Agreement) concerning, the
subject matter hereof and may not be amended, modified or terminated except by a
writing signed by the parties hereto.
ARTICLE 18
COUNTERPARTS
This Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
/s/ XXXX X. XXXXXX
---------------------------------------------
XXXX X. XXXXXX, as a Trustee of the
Xxxxx Xxxxxxx 1995 Irrevocable Life
Insurance Trust
/s/ XXXXXXX X. XXXXXX
---------------------------------------------
XXXXXXX X. XXXXXX, as a Trustee of
the Xxxxx Xxxxxxx 1995 Irrevocable
Life Insurance Trust
PRECISION RESPONSE CORPORATION, a
Florida corporation
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Chairman of the
Board
This Amended and Restated Split Dollar Agreement and Collateral Assignment
relating to the Policy was executed and recorded by New York Life Insurance
Company on 12-8-99.
NEW YORK LIFE INSURANCE COMPANY
By: /s/ XXXX XXXXXXXX
----------------------------------
Name:
Title:
The issuer assumes no responsibility for the validity of any assignment or
collateral assignment.
[X] NEW YORK LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Secretary
[ ] NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Secretary
[ ] NEW YORK LIFE INSURANCE COMPANY OF ARIZONA
By /s/ not legible DATE 12-8-99
--------------------------------- ---------------
Secretary
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SCHEDULE A
INSURANCE POLICY ON THE LIFE
OF XXXXX X. XXXXXXX
New York Life
Insurance Semi-Annual
Company Planned
Policy Number Type of Policy Face Amount Premium
------------- -------------- ----------- -------
45 588 030 Single Life $1,500,000.00 $7,033.00
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