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EXHIBIT 10.56
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 ▇▇▇▇▇▇▇ 1995 Family Trust u/a/d August 2, 1995 (the
"▇▇▇▇▇▇▇ Family Trust") and PRECISION RESPONSE CORPORATION, a Florida
corporation (the "Company") (whose address is ▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇, 33169).
W I T N E S S E T H:
WHEREAS, the ▇▇▇▇▇▇▇ Family 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 lives of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (the "Husband" or "▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇") and his spouse, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Wife");
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 ▇▇▇▇▇▇▇ Family 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
▇▇▇▇▇▇▇ Family Trust and the Company desire to amend and restate in its entirety
the 1999 Agreement;
WHEREAS, the Husband is employed by the Company pursuant to
that certain Employment Agreement (the "Employment Agreement") dated as of May
15, 1996, between the Husband and the Company, as amended by the Amendment to
Employment Agreement dated as of April 1, 1999, between the Husband 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 ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family Trust has obtained the Policy on the
Husband's and Wife's joint lives in the total face amount of $3,000,000. 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 ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇
Family Trust the Premium when due less the amounts due from the ▇▇▇▇▇▇▇ Family
Trust pursuant 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.
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B. The ▇▇▇▇▇▇▇ Family 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 38 rate or the Insurance
Company's annual term insurance rates on the lives of the Husband and Wife while
they are both alive, and 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 survivor of the Husband and Wife after the
death of the first of them to die) of the insurance proceeds which the
beneficiary or beneficiaries named by the ▇▇▇▇▇▇▇ Family Trust would be entitled
to receive if the survivor of the Husband and Wife died during that policy year
(before any reduction for any repayments to be made to the Company pursuant to
this Agreement).
ARTICLE 5
▇▇▇▇▇▇▇ FAMILY TRUST'S OBLIGATION TO COMPANY
A. The ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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 Husband'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 Husband's employment as a
result of Husband's disability (as such term is defined in paragraph 7(b) of the
Employment Agreement);
2. The voluntary resignation of Husband 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 Husband's
attainment of normal retirement age of sixty-five (65) years;
3. The termination of Husband's employment as a
result of Husband's Constructive Termination (as defined in paragraph 7(e) of
the Employment Agreement);
4. The involuntary termination of Husband's
employment by Company for any reason not set forth in paragraph 7 of the
Employment Agreement; and/or
5. The failure or refusal by Company to renew the
term of the Employment Agreement pursuant to paragraph 2 thereof or
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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 Husband or (c) Husband entering into a
successor employment agreement with the Company acceptable to Husband 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 ▇▇▇▇▇▇▇ Family Trust to the Company
pursuant to ARTICLE 6 hereof;
2. The ▇▇▇▇▇▇▇ Family 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 Husband which Husband 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 ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family Trust must repay to the Company the Net
Payment Amount less any repayments made by the ▇▇▇▇▇▇▇ Family Trust to the
Company prior to the occurrence of a Termination Event (as hereinafter defined)
upon the termination of Husband'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"):
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1. The termination of Husband's employment by Company
for cause pursuant to paragraph 7(c) of the Employment Agreement; and/or
2. The voluntary resignation by Husband 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 ▇▇▇▇ ▇. ▇▇▇▇▇▇ (for these purposes, counting all common stock directly
or indirectly beneficially owned by ▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ Affiliates (as hereinafter
defined)) nor ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (for these purposes, counting all common stock
directly or indirectly beneficially owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇'▇ Affiliates)
beneficially owns at least ten (10%) percent of the issued and outstanding
common stock of Company (or its successor); (ii) neither ▇▇▇▇ ▇. ▇▇▇▇▇▇ (for
these purposes, counting all common stock directly or indirectly beneficially
owned by ▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ Affiliates) nor ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (for these purposes,
counting all common stock directly or indirectly beneficially owned by ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇'▇ 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) ▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ 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 ▇▇▇▇ ▇. ▇▇▇▇▇▇
or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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
▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ Family 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
Company of the Company Net Payment Amount shall constitute satisfaction of the
▇▇▇▇▇▇▇ Family Trust's obligation under Section A of ARTICLE 5 hereof and this
ARTICLE 7.
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ARTICLE 8
DEATH CLAIMS
A. When the survivor of the Husband and Wife 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
such death, 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
▇▇▇▇▇▇▇ Family Trust to the Company prior to the death of the survivor of the
Husband and Wife; provided, however, that upon receipt of such amount by the
Company, the Company shall release the collateral assignment of the Policy made
by the ▇▇▇▇▇▇▇ Family Trust to the Company pursuant to ARTICLE 6 of this
Agreement. The receipt of such amount by the Company shall constitute
satisfaction of the ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family Trust to the Company prior to the death of the survivor of
the Husband and Wife, the ▇▇▇▇▇▇▇ Family Trust shall be liable to the Company
for the amount of such insufficiency.
B. When the survivor of the Husband and Wife dies, the
beneficiary or beneficiaries named by the ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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
▇▇▇▇▇▇▇ Family 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 survivor of the Husband and Wife,
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 such death, 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 ▇▇▇▇▇▇▇ Family Trust (or by its assignees) in the
same proportions as their respective shares of the last premium payment made by
the Company and the ▇▇▇▇▇▇▇ Family Trust, respectively.
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ARTICLE 9
DIVISION OF THE NET CASH SURRENDER
VALUE OF THE POLICY
A. If the Policy is surrendered (which the then Trustees of
the ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family Trust to the Company prior
to such surrender, the ▇▇▇▇▇▇▇ Family Trust shall be liable to the Company for
the amount of such insufficiency.
B. The ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family Trust;
B. Upon the election of the aggrieved party, if either the
Company or the ▇▇▇▇▇▇▇ Family 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
▇▇▇▇▇▇▇ Family Trust shall be in addition to all of the other rights and
remedies at law or in equity of the ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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
▇▇▇▇▇▇▇ Family Trust or this Agreement is terminated under Section A or Section
B of ARTICLE 10 hereof, the ▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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
▇▇▇▇▇▇▇ Family Trust to the Company pursuant to ARTICLE 6 of this Agreement. If
the ▇▇▇▇▇▇▇ Family Trust does not repay such amount within such one hundred
twenty (120) day period, the Company may enforce its rights against the ▇▇▇▇▇▇▇
Family Trust under this Agreement in any way it sees fit, subject, however, to
the ▇▇▇▇▇▇▇ Family Trust's right to set off against any claim made by the
Company any damages suffered by or claims of the ▇▇▇▇▇▇▇ Family Trust to the
extent this Agreement was terminated by the ▇▇▇▇▇▇▇ Family 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 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
▇▇▇▇▇▇▇ Family 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 ▇▇▇▇▇▇▇ Family 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Trustee of the
▇▇▇▇▇▇▇ 1995 Family Trust
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Trustee of
the ▇▇▇▇▇▇▇ 1995 Family Trust
PRECISION RESPONSE CORPORATION, a
Florida corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 DECEMBER 8, 1999.
NEW YORK LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ SHUMPUT
------------------------------------
Name: ▇▇▇▇▇ Shumput
Title:
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SCHEDULE A
INSURANCE POLICY ON THE JOINT
LIVES OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
New York Life Semi-
Insurance Annual
Company Planned
Policy Number Type of Policy Face Amount Premium
------------- -------------- ----------- -------
45 588 264 Second-to-die $3,000,000.00 $5,191.00
