Exhibit 10.16
SPLIT DOLLAR AGREEMENT
This SPLIT DOLLAR AGREEMENT (this "Agreement") is entered into as of
September 7, 1999, by and between ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Owner") and AMERICAN
CAPITAL STRATEGIES, LTD., a Delaware corporation (the "Employer").
R E C I T A L S
WHEREAS, the Owner and the Employer have entered into a Stock Option
Exercise Agreement of event date herewith (the "Exercise Agreement") pursuant to
which they have agreed to enter into and consummate this Agreement; and
WHEREAS, Owner will be the owner and possessor of the Policy (as
defined herein) and will assign an interest in the Policy's death benefit and
cash value to the Employer as collateral to secure repayment of Employer's
premium payments with respect to the Policy pursuant to the Exercise Agreement;
and
WHEREAS, it is the intent of the Employer and Owner to define the
extent of the Employer's security interest in the Policy;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing
and intending to be legally bound hereby, agree as follows:
1. Interests in the Policy. The Policy that is the subject of this
Split Dollar Agreement is Security Life of Denver Insurance Company (the
"Insurer") Policy Number 610014589 on the life of the Owner (the "Policy"). The
Employer's interest in the cash value and death benefits of the Policy (the
"Employer's Interest") as of any date, shall be equal to the Unamortized Premium
Payment (as defined herein) as of such date with interest accumulated at a rate
of 4.5% per annum. The Owner's interest in the cash value and death benefits of
the Policy (the "Owner's Interest") shall be equal to the remaining cash value
A:\Exh. 10.16.doc
and death benefits of the Policy, if any, in excess of the Employer's Interest,
reduced by any distributions made to the Owner prior to such date.
2. Premium Payments. The Employer will, on or as of the date hereof and
on each of the first four anniversaries of the date hereof, make cash payments
on the Policy in the amount of $96,315 (each payment being an "Annual Premium
Payment" and collectively, the "Aggregate Premium Payments"). The Owner shall
have imputed income each year in an amount equal to (a) the annual cost of
current death benefit protection on the life of the Owner, measured by the lower
of (i) the PS 58 rate, as set forth in Revenue Ruling 55-747 (or the
corresponding applicable provision of any future Revenue Ruling), or (ii) the
Insurer's current published premium rate for annually renewable term insurance
for standard risks plus, without duplication, (b) one-tenth of the Aggregate
Premium Payments. The "Unamortized Premium Payment" as of any date shall be the
aggregate Annual Premium Payments made through such date reduced by 2.5% of the
Aggregate Premium Payments on each October 1, January 1, March 1 and July 1
during the term of this Agreement.
3. Death Benefit Amounts.
a. In the event of Owner's death prior to the termination of
this Agreement, the death benefit payable to the Employer (or the Employer's
designated beneficiaries) under this Agreement shall be equal to the Employer's
Interest in the Policy at the time of Owner's death.
b. In the event of the Owner's death prior to the termination
of this Agreement, the death benefit payable to the Owner (or the Owner's
designated beneficiaries) shall be the excess of the total death proceeds under
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the Policy less the amount payable to the Employer (or the Employer's designated
beneficiaries). Following the termination of this Agreement and upon the
satisfaction of the Employer's Interest in the Policy, the Owner's death benefit
will be equal to the total death benefit provided by the Policy.
c. Owner understands that sufficiency of cash value in the
Policy to provide expected amounts of death benefit under this Agreement may
vary as a result of Policy performance and duration of premium payments and this
is in no event guaranteed by the Employer or the Insurer.
4. Ownership and Rights in the Policy.
a. The Policy will be owned exclusively by the Owner. While
this Agreement is in effect, the Employer has a security interest in the Policy
under this Agreement limited exclusively to the Employer's Interest in the
Policy; provided, however, this paragraph 4 shall not in any way limit or affect
the obligations or rights of the parties under that Exercise Agreement.
b. The Owner shall have the right to make any investment
choices permitted by the Policy and that appear on Exhibit A hereto with respect
to the cash value of the Policy. Any other investment choices will require the
consent of the Employer.
c. The Owner's rights shall also include the right to select
and change beneficiaries to receive Owner's death benefits. The Owner will not
be permitted to borrow against, or partially or totally surrender the Policy as
long as the Collateral Assignment remains in force, except as provided in the
Exercise Agreement. Any other rights in the Policy other than those specifically
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mentioned in this Agreement must be exercised with the written consent of both
the Owner and the Employer.
d. Notwithstanding anything to the contrary in this Agreement,
Owner shall have the right to assign ownership of the Policy to an insurance
trust created by the Owner, provided that any such assignment shall be made
expressly subject to the rights and interests of the Employer to the Policy
created under this Agreement and under the Exercise Agreement and the trustee
thereof shall have executed such instrument as the Employer may reasonably
request confirming such rights and interests of the Employer.
5. Assignment of Policy to Secure Employer's Payments. To secure
Employer's Interest in the Policy under this Agreement, Owner will collaterally
assign the Policy to the Employer by signing the separate Collateral Assignment.
The Collateral Assignment cannot be altered without the Employer's, Owner's and
Insurer's consent.
6. Termination of Split Dollar Agreement. This Agreement will terminate
upon the earliest to occur of the following:
a. Death of the Owner and the payment to Employer of all
amounts due it hereunder;
b. Written agreement of both the Owner and the Employer to
terminate this Agreement;
c. Termination of Owner's employment; provided however, that
if the Employer and Owner are parties to a Supplemental Employment Agreement
substantially in the form of Exhibit 4.11 to the Second Amended and Restated
Employment Agreement dated as of June 7, 1999, between Employer and Owner, Owner
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shall be deemed to be employed by Employer only if Employee has elected to be
bound by Section 5.2(a) thereof; or
d. A release of the Collateral Assignment pursuant to Section
7 herein. Upon termination of this Agreement, the Employer shall receive the
Employer's Interest in the Policy as soon as is practical, but in no event shall
receipt be later than sixty (60) days from the earliest of the dates listed
above. In the event of termination of this Agreement for reason other than the
death of the Owner, the payment of the Employer's Interest in the Policy and
under this Agreement shall be satisfied either directly from the cash value of
the Policy or by direct payment by the Owner, at the discretion of the Owner. In
this event, the recovery of the Employer's Interest shall be limited to the cash
value of the Policy at that time. In the event of termination of this Agreement
by reason of the death of the Owner, the Employer's Interest in the Policy and
under this Agreement shall be satisfied through direct payment from the Insurer
from the Policy proceeds.
7. Release of Collateral Assignment. Upon receipt of the Employer's
Interest in the Policy, as provided above, either whether from the Policy, or
from the Owner, the Employer will release the Collateral Assignment. Upon
satisfaction of the Employer's Interest in the Policy, the Owner shall have
unrestricted ownership to the Policy, subject to the terms of the Exercise
Agreement.
8. Miscellaneous.
a. Not an Employment Agreement. This Agreement does not in any
way constitute an employment agreement, and the Employer reserves the right to
terminate Owner's employment to the same extent as though this Agreement did not
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exist. This Agreement may be amended at any time by written agreement signed on
behalf of the Employer and by the Owner.
b. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Employer and its successors and assigns, and to the
Owner and the Owner's heirs, executor or personal representative and
beneficiaries.
c. Notices. Any notice, consent or demand required or
permitted under this Agreement shall be made in writing and shall be signed by
the party making the notice, consent, or demand. Such notice shall be sent by
United States certified mail, postage pre-paid and shall be sent to the other
party's last known address as shown on the records of the Employer. The date of
such mailing shall be deemed to be the date of such notice, consent or demand.
d. Governing Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of Maryland, without
reference to the conflicts of laws provisions thereof.
9. Claims Procedures.
a. Claimants. Any person or entity claiming a benefit,
requesting an interpretation or ruling under the Plan (hereinafter referred to
as "Claimant") shall present the request in writing to the Employer, which shall
respond in writing as soon as practicable. If the claim or request is denied,
the written notice of denial shall state the reason for denial, with specific
reference to the provisions on which the denials is based, a description of any
additional material or information required and an explanation of why it is
necessary, and an explanation of the program's claims review procedure.
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b. Review of Claim. Any Claimant whose claim or request is
denied or who has not received a response within sixty (60) days may request a
review by notice given in writing to the Employer. Such request must be made
within sixty (60) days after receipt by the Claimant of the written notice of
denial, or in the event Claimant has not received a response sixty (60) days
after receipt by the Employer of Claimant's claim or request. The claim or
request shall be reviewed by the Employer which may, but shall not be required
to, grant the Claimant a hearing. On review, the Claimant may have
representation, examine pertinent documents, and submit issues and comments in
writing.
c. Final Decision. The decision or review shall normally be
made within sixty (60) days after the Employer's receipt of Claimant's claim or
request. If an extension of time is required for a hearing or other special
circumstances, the Claimant shall be notified and the time limit shall be one
hundred twenty (120) days. The decision shall be in writing and shall state the
reason and the relevant provisions. All decisions on review shall be final and
bind all parties concerned.
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IN WITNESS WHEREOF, the Employer and the Owner have executed and
delivered this Split Dollar Agreement, which is effective as of the effective
date of the Policy described herein.
AMERICAN CAPITAL STRATEGIES. LTD.
By:
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Name:
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Title:
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OWNER
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Witness
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