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Exhibit 10.4
AMENDED AND RESTATED
SPLIT DOLLAR
LIFE INSURANCE AGREEMENT
I PARTIES
A. The Wackenhut Corporation ("Employer"), ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
B. The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Irrevocable Trust dated January 25, 1982 ("GW
Trust"), c/o Northern Trust Bank, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
C. The ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Irrevocable Trust dated January 3, 1983 ( "RW
Trust"), c/o Northern Trust Bank, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Employee"), ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇.
II DEFINITIONS
A. The "Parties" are the persons listed in paragraphs IA, IB, IC, and
ID above;
B. The "Owners" (sometimes also referred to as "Owner"), are the GW
Trust and the RW Trust;
C. The "Agreements" are the two agreements identified in paragraphs
IIIA and IIIB below;
D. This Amended and Restated Split Dollar Life Insurance Agreement is
referred to as the "Restated Agreement";
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E. The "Insurer" is the Manufacturers Life Insurance Company
("Manufacturers").
F. The "Policy" is the policy issued by Manufacturers and listed on
Schedule A;
G. The "Employer's Policy Interest" is the total amount to be paid to
Employer as specified in paragraph IVD.
III RECITALS
A. On January 25, 1982 certain of the Parties hereto entered into an
Agreement Relating to Advancements for Life Insurance on the Life of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and Other Provisions Relating Thereto. That Agreement is to expire
after the eighth anniversary date, unless extended by the Parties.
B. On January 3, 1983, certain of the Parties hereto entered into an
Agreement Relating to Advancements for Life Insurance on the Life of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and Other Provisions Relating Thereto. That Agreement is to expire
after the eighth anniversary date, unless extended by the Parties.
C. The respective Parties now desire to amend and entirely restate the
Agreements described in paragraphs IIIA and IIIB above to extend the terms
thereof and to reflect that new coverage has been purchased in furtherance of
those Agreements.
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D. Employer is a corporation duly organized and validly existing under
the laws of Florida.
E. Employee is the Chairman and Chief Executive Officer of Employer and
is a valued and trusted employee.
F. In consideration of the faithful performance of services by Employee
for Employer, Employer wishes to continue assisting Owner in paying the premiums
on a life insurance policy by contributing from time to time, to the payment of
premiums due on the policy on the life of Employee and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and to
provide a means for payment to Employer of all amounts it is entitled to receive
under the Agreements and this Restated Agreement, all in accordance with the
terms and conditions of this Restated Agreement.
G. Employer and Employee have agreed that the Policy insuring the lives
of Employee and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, his wife, issued by Manufacturers, which was
purchased by and is owned by the Owners, is subject to the terms and conditions
of this Restated Agreement.
H. Each Owner is an irrevocable trust under the laws of Florida.
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the parties mutually agree as follows:
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IV TERMS
A. ACQUISITION OF POLICY. The Parties shall cooperate in paying the
annual premiums on the Policy as long as the Policy remains in force. The Policy
was issued to the Owner as owner and the Owner shall be the sole and exclusive
owner of the Policy.
B. PAYMENT OF PREMIUMS.
Employer has paid the Policy premiums through March 1, 1990. All
premium payments thereafter shall be paid by the Employer and the Owner in
accordance with the formula set forth in this paragraph IVB(1), IVB(2), IVB(3)
and IVB(4) below. Unless otherwise agreed to by the Employer and the Owner, all
premium payments on the Policy are to be made in accordance with and subject to
the following terms and conditions:
(1) On or before thirty days prior to the due date of each
required premium on the Policy (not including any grace period), the
Employer shall pay to Owner the amount specified in Schedule B for the
applicable policy year for each year that this Restated Agreement is in
force.
(2) Owner shall pay to the Insurer the amount received by it
under paragraph IVB(1) above and the amount specified in Schedule C
for the applicable policy year for each year that this Restated
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Agreement is in force. Owner's share of the premium has been
calculated using the Insurer's current published premium rate for
annual renewal term insurance for standard risks for joint lives; if
this is adjusted by Insurer in the future, Owner's share of the premium
will be adjusted accordingly.
(3) Owner shall pay its portion of each premium on a date no
later than a date within the grace period allowed by the Policy. Upon
request by Employer, Owner shall provide Employer with proof of
payment.
(4) To the extent the Employer fails to pay a portion of any
premium due on the Policy, as required by paragraph IVB(1) above, the
Owner may, at its option, pay all or any portion of the premium and
deduct that amount from the total amount of the Employer's Policy
Interest, notwithstanding any other provision of this Agreement.
Notwithstanding anything herein to the contrary, to the extent the
Employer fails to pay a portion of any premium due on the Policy or pay
the additional compensation payable under the following paragraph IVC,
neither the Owner, Employee or any other person shall have the
obligation to pay such premium due on the Policy.
C. ADDITIONAL COMPENSATION. As additional compensation to Employee, the
Employer also shall pay to Employee, if
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living, or to his wife if he is then deceased, an amount equal to the Owner's
portion of the annual premium, as specified in Schedule C. Employee and ▇▇▇▇
▇▇▇▇▇▇▇▇▇ agree to contribute to Owner all amounts received by either of them
under the prior sentence of this paragraph IVC.
D. DISBURSEMENT OF POLICY PROCEEDS BY OWNER. In consideration of the
Employer's agreement to continue to contribute to the payment of the premiums in
the manner set forth in this Restated Agreement, Owner agrees to repay to
Employer, at the time and in the manner provided in this Restated Agreement, the
sum of $760,000 in full settlement of all amounts due or to become due under
this Restated Agreement.
E. POLICY OWNERSHIP. Owner is the owner of the Policy and may exercise
all rights of ownership with respect to the Policy. Such rights include the
privilege to exercise all the rights of an owner under the terms of the Policy,
including the right to borrow on the security of the Policy, but only to the
extent that the cash value exceeds the Employer's Policy Interest; to pledge or
assign the interest in the Policy for such loans or advances; the right, in the
event of a termination of this Restated Agreement, to realize against the cash
value of the Policy and to retain the cash received after satisfying the Owner's
obligation to pay to Employer the Employer's Policy Interest; the right of Owner
pursuant to paragraph IVG, to collect the Policy proceeds and to retain the
balance of the proceeds remaining after satisfying the Owner's
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obligations to pay to Employer the Employer's Policy Interest; and the right,
subject to the right of Employer to be paid its Policy Interest, to surrender
the Policy. Employer agrees to sign any documents necessary to assist owner in
exercising its rights under this Restated Agreement. Owner also has the right to
assign its ownership rights to any person or entity it, in its absolute
discretion chooses.
F. APPLICATION OF POLICY DIVIDENDS. Any annual dividend attributable to
the Policy will be applied to the reduction of the Employer's portion of
premiums due on the Policy pursuant to paragraph IVB(1).
G. DEATH. In the event of the death of the survivor of Employee and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ while this Restated Agreement is in force:
(1) Employer shall be entitled to that portion of the proceeds
of the Policy equal to the amount of Employer's Policy Interest.
(2) Owner shall be entitled to the proceeds of the Policy in
excess of the amount of the Employer's Policy Interest.
H. OWNERSHIP. Notwithstanding anything herein contained to the
contrary, in no event shall Employer have any ownership or security interest in
any assets of Owner, including but not limited to, the Policy.
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I. Termination of Restated Agreement.
(1) Subject to fulfillment of the obligations arising upon termination
hereinafter set forth, this Restated Agreement shall terminate on the first to
occur of the following events (each referred to herein as a "Termination
Event"):
(i) Delivery of written notice of termination by Employer to
Owner.
(ii) Surrender of the Policy by Owner with the written consent
of the Employer.
(iii) At the option of Employer, termination of Employee's
employment with Employer for any reason, by either Employer or
Employee, with or without cause.
(iv) Bankruptcy or receivership of the Employer.
(2) Within fifteen (15) work days following a Termination Event, Owner,
in Owner's sole discretion, shall take one of the following actions:
(i) Surrender the Policy and pay to Employer the Employer's
Policy Interest to the extent of the cash surrender value.
(ii) Retain all or a portion of the Policy and pay to
Employer the Employer's Policy Interest to the extent of the cash
surrender value.
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J. PROVISIONS REGARDING THE INSURANCE. The parties acknowledge and
agree as follows:
(1) Manufacturers shall be bound only by the provisions of
the Policy and any endorsement thereto.
(2) Any payment made or actions taken by Manufacturers in
accordance with the provisions of the Policy and any endorsement thereto shall
fully discharge Manufacturers from all claims, suits and demands of all persons
whatsoever.
(3) Manufacturers shall not be deemed a party to, or to have
notice of, this Restated Agreement or the provisions hereof and shall have no
obligation to see to the performance of the obligations of the parties
hereunder.
K. SPECIAL PROVISIONS. In compliance with the requirements of the
Employee Retirement Income Security Act of 1974, as amended, the parties hereby
confirm:
(1) Employer is the named fiduciary of the split dollar life
insurance plan of which this Amended and Restated Agreement is the written
instrument.
(2) The funding policy of the split dollar life insurance plan
is that the Employer will pay the premiums under the Policy as required under
paragraph IVB above.
(3) The following claims procedure shall be utilized:
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(i) The claimant shall file a claim for benefits by notifying
Employer orally or in writing. If the claim is wholly or
partially denied, Employer shall provide a written notice
within ninety (90) days specifying the reason for the denial,
the provisions of this Amended and Restated Agreement on which
the denial is based, and additional material or information,
if any, necessary for the claimant to receive benefits. Such
written notice shall also indicate the steps to be taken by
the claimant if a review of the denial is desired.
(ii) If a claim is denied and a review is desired, the claimant
shall notify the Employer in writing within sixty (60) days
after receipt of written notice of a denial of a claim. In
requesting a review, the claimant may review plan documents
and submit any written issues and comments the claimant feels
are appropriate. Employer shall then review the claim and
provide a written decision within sixty (60) days of receipt
of a request for a review. This decision shall state the
specific reasons for the decision and shall include references
to specific provisions of this Restated Agreement, if any,
upon which the decision is based.
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(iii) In no event shall Employer's liability under this Restated
Agreement exceed the amount of proceeds from the Policy.
L. AMENDMENT. This Restated Agreement may be altered, amended or
modified, including the addition of any extra policy provisions, but only by a
written instrument signed by all of the Parties.
M. ASSIGNMENT. One or more of the parties may assign such party's
interests and obligations under this Restated Agreement at any time subject to
the terms and conditions of this Restated Agreement.
N. GOVERNING LAW. This Restated Agreement shall be governed by the laws
of the State of Florida.
O. ENTIRE AGREEMENT. This Restated Agreement sets forth the entire
agreement of the parties with respect to the subject matter hereof. Any and all
prior agreements or understandings with respect to such matters are hereby
superseded.
IN WITNESS WHEREOF, the parties have signed this Restated Agreement as
of the 17th day of October, 1989.
EMPLOYER:
THE WACKENHUT CORPORATION
Attest: /s/ ▇.▇. ▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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OWNER:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ IRREVOCABLE TRUST
Northern Trust Bank, N.A.
Co-Trustee
By: /s/ Illegible
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, CPA
Co-Trustee
OWNER:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ IRREVOCABLE TRUST
Northern Trust Bank, N.A.
Co-Trustee
By: /s/ Illegible
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, CPA
Co-Trustee
EMPLOYEE:
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EMPLOYEE'S WIFE:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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SCHEDULE A
Company Policy # Face Amount
------- -------- -----------
Manufacturers Life
Insurance Company 5,130,509-2 $800,000
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Schedule B
Employer Premium Payments Per Paragraph IVB(1)
Year Employer's Premium
---- ------------------
1 $16,481
2 16,470
3 16,456
4 16,440
5 16,421
6 16,399
7 16,372
8 16,341
9 16,304
10 16,261
11 16,209
12 16,149
13 16,078
14 15,994
15 15,897
16 15,782
17 15,648
18 15,491
19 15,311
20 15,097
If there are premium payments due after year 20, the annual premium payments
will continue to be $16,543 annually with the Employer's portion reduced by the
amounts paid by Owner as determined under Schedule C.
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Schedule C
Owner Premium Payments Per Paragraph IVB(2)
Year Owner's Premium
---- ---------------
1 $ 62
2 74
3 87
4 103
5 122
6 144
7 171
8 202
9 239
10 282
11 334
12 394
13 465
14 549
15 646
16 761
17 895
18 1,052
19 1,232
20 1,446
If there are premium payments due after year 20, the annual premium payments to
be paid by the Owner will be the lower of the P.S. 58 amount or the current
premium rate for annual renewal term insurance for standard risks published by
Manufacturers.
