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EXHIBIT 10.32
AMENDMENT OF BENEFITS AGREEMENT
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THIS AGREEMENT, made and entered into as of the 1st day of October,
1998, by and between OMG AMERICAS, INC., an Ohio corporation (hereinafter
referred to as the "Corporation"), and XXXXXX XXX (hereinafter referred to as
the "Employee"),
WITNESSETH THAT:
WHEREAS, Employee and the Corporation are the parties to that certain
Retirement Benefit Agreement ("Original Retirement Benefit Agreement") dated
January 1, 1995, under which Employee would have been entitled to receive
certain benefits if he remained employed by the Corporation until attaining the
normal retirement age as described therein;
WHEREAS, the former name of OMG Americas, Inc. was Xxxxxx
Chemicals, Inc.; and
WHEREAS, Employee and the Corporation desire to amend the benefits
package provided to the Employee in the manner provided for hereunder;
NOW, THEREFORE, in consideration of these premises and the mutual
promises set forth herein, the parties hereby agree as follows:
1. BONA FIDE AMENDMENT TO BENEFITS. Based on arm's-length negotiations
between the Corporation and the Employee, the Employee shall not be entitled to
the benefits as described in the Original Retirement Benefit Agreement, and the
Corporation shall not be obligated to provide any of the benefits as described
in the Original Retirement Benefit Agreement, and as an amendment thereof,
contemporaneously herewith, the Corporation, the Employee, the Employee's
spouse, and a trust for the benefit of the Employee's family, shall enter into a
Split- Dollar Agreement under which the Corporation shall provide certain
benefits to the Employee.
2. MISCELLANEOUS. This Agreement may not be amended, altered or
modified, except by a written instrument signed by the parties hereto or their
respective successors. This Agreement shall be binding upon and inure to the
benefit of the Corporation and its successors and assigns, and Employee and his
heirs, executors, administrators and beneficiaries. This Agreement, and the
rights of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year first above written.
OMG AMERICAS, INC.
By: /s/ XXXXXX XXX By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx Xxx Xxxxxx X. Xxxxxxx
President
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SPLIT-DOLLAR AGREEMENT
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THIS AGREEMENT, made and entered into as of the 1st day of October,
1998, by and between OMG Americas Inc., an Ohio corporation (the "corporation"),
Xxxxxx Xxx (the "Employee"), and the Xxxxxx and Xxxxxxx Xxx Irrevocable Demand
Trust, Xxxxxx X. Xxx, trustee, U/A dated June 11, 1998 (the "Trust" or the
"Owner"),
WITNESSETH THAT:
WHEREAS, the Employee is employed by the corporation;
WHEREAS, the Employee wishes to provide life insurance protection to
the Trust upon the death of the survivor of the Employee and his spouse, Xxxxxxx
Xxx (the "Spouse"), under a policy of life insurance insuring their lives
(hereinafter referred to as the "Policy"), which is described in Exhibit A
attached hereto and by this reference made a part hereof, and which is being
issued by the insurer designated in Exhibit A (hereinafter referred to as the
"Insurer");
WHEREAS, the Corporation is willing to pay a portion of the premiums
due on the Policy as an additional employment benefit for the Employee, on the
terms and conditions hereinafter set forth;
WHEREAS, the Trust shall be the owner of the Policy and,
shall possess all incidents of ownership in and to the Policy;
WHEREAS, the Corporation wishes to have the Policy collaterally
assigned to it by the Trust, in order to secure the payment of the amounts which
it will pay toward the premiums on the Policy;
NOW, THEREFORE, in consideration of these premises and of the mutual
promises contained herein, the parties hereto agree as follows:
1. Purchase of Policy. The Trust has or will purchase the Policy in the
total face amount designated in Exhibit A attached hereto. The parties hereto
agree that they will take any further action which may be necessary to cause the
Policy to conform to the provisions of this Agreement. The parties hereto agree
that the Policy shall be subject to the terms and conditions of this Agreement
and of the collateral assignment filed with the Insurer relating to the Policy.
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2. Ownership of Policy. The Trust shall be the sole and absolute owner of
the Policy, and may exercise all ownership rights granted to the owner thereof
by the terms of the Policy, except as may otherwise be provided herein.
3. Payment of Premiums.
a. Thirty (30) days prior to the due date of each Policy premium, the
Corporation shall notify the Employee of the exact amount due from the Employee
hereunder, which shall be an amount equal to the annual cost of current life
insurance protection on the life of the Employee, measured by the lower of the
U.S. Life Table 38 rates, or the Insurer's current published premium rate for
annually renewable term insurance for standard risks. Either the Employee, or
the Owner on behalf of the Employee, shall pay such required contribution to the
Corporation prior to the premium due date. If neither the Employee nor the Owner
makes such timely payment, the Corporation, in its sole discretion, may elect to
make the Employee's portion of the premium payment, which payments shall be
recovered by the Corporation as provided herein.
b. On or before the due date of each Policy premium, or within the
grace period provided therein, the Corporation shall pay the full amount of the
premium to the Insurer, and shall, upon request, promptly furnish the Employee
evidence of timely payment of such premium. The Corporation shall annually
furnish the Employee a statement of the amount of income reportable by the
Employee for federal and state income tax purposes, if any, as a result of the
insurance protection provided the Owner as the policy beneficiary.
4. Collateral Assignment. To secure the payment to the Corporation of the
amount of the premiums on the Policy paid by it, the Trust has,
contemporaneously herewith, assigned the Policy to the Corporation as
collateral. The collateral assignment of the Policy to the Corporation hereunder
shall not be terminated, altered or amended by the Trust prior to the
termination of this Agreement, without the express written consent of the
Corporation. The parties hereto agree to take all action necessary to cause such
collateral assignment to conform to the provisions of this Agreement.
5. Limitations on Trust's Rights in Policy.
a. Except as otherwise provided herein or in the Collateral Assignment
document relating to the Policy, the Trust shall not sell, assign, transfer,
borrow against, surrender or cancel the Policy, nor change the beneficiary
designation provision thereof, without in any such case, the express written
consent of the Corporation.
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b. Notwithstanding any provision hereof to the contrary, the Trust
shall have the right to absolutely and irrevocably assign all of its right,
title and interest in and to this Agreement to an assignee. This right shall be
exercisable by the execution and delivery to the Corporation of a written
assignment. Upon receipt of such written assignment executed by the Trust and
duly accepted by the assignee thereof, the Corporation shall consent thereto in
writing, and shall thereafter treat the Trust's assignee as the sole owner of
all of the Trust's right, title and interest in and to this Agreement.
Thereafter, the Trust shall have no right, title or interest in and to this
Agreement, all such rights being vested in and exercisable only by such
assignee.
6. Collection of Death Proceeds.
a. Upon the death of the Employee and his Spouse, the Corporation shall
cooperate with the then acting trustee of the Trust and the beneficiary or
beneficiaries designated by the Trust to take whatever action is necessary to
collect the death benefit provided under the Policy; when such benefit has been
collected and paid as provided herein, this Agreement shall thereupon terminate.
b. Upon the death of the Employee and his Spouse, the Corporation shall
have the unqualified right to receive a portion of such death benefit equal to
the total amount of the premiums on the Policy paid by it, reduced by any
outstanding indebtedness which was incurred by the Corporation and secured by
the Policy, including any interest due on such indebtedness. The balance of the
death benefit provided under the Policy, if any, shall be paid to the
beneficiary or beneficiaries designated by the Trust, in the manner and in the
amount or amounts provided in the beneficiary designation provision of the
Policy. In no event shall the amount payable to the Corporation hereunder exceed
the Policy proceeds payable at the death of the Employee and his Spouse. No
amount shall be paid from such death benefit to the beneficiary or beneficiaries
designated by the Trust until the full amount due the Corporation hereunder has
been paid. The parties hereto agree that the beneficiary designation provision
of the Policy shall conform to the provisions hereof.
c. Notwithstanding any provision hereof to the contrary, in the event
that, for any reason whatsoever, no death benefit is payable under the Policy
upon the death of the Employee and his Spouse and in lieu thereof the Insurer
refunds all or any part of the premiums paid for the Policy, the Corporation and
the Trust's beneficiary or beneficiaries shall have the unqualified right to
share such premiums based on their respective cumulative contributions thereto.
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7. Termination of the Agreement During the Lifetime of the Employee or His
Spouse.
a. This Agreement shall terminate, before the death of the survivor of
the Employee and his Spouse, without notice, on the date that is fifteen (15)
years after the date of this Agreement, provided that the Agreement shall
terminate sooner upon the occurrence of any of the following events: (i) total
cessation of the Corporation's business; or (ii) bankruptcy, receivership or
dissolution of the Corporation.
b. Notwithstanding Section 7a hereof, on the date that is fifteen (15)
years after the date of this Agreement, if (i) this Agreement has not otherwise
terminated earlier, and (ii) the cash surrender value of the policy at such time
is not sufficient to maintain a death benefit under the policy of at least One
Million Three Hundred Thousand Dollars ($1,300,000.00) without the further
payment of premiums on the policy (assuming reasonable growth of the policy and
reasonable mortality costs and other expenses, and such other reasonable
assumptions as may be necessary to make such determination), this Agreement
shall remain in effect until clause (ii) hereof is satisfied (when clause (ii)
hereof is subsequently satisfied, this Agreement shall then terminate).
c. In addition, the Trust may terminate this Agreement at any time, by
written notice to the Corporation. Such termination shall be effective as of the
date of such notice.
8. Disposition of the Policy on Termination of the Agreement During the
Lifetime of the Employee or His Spouse.
a. For sixty (60) days after the date of the termination of this
Agreement during the lifetime of the Employee or his Spouse, the Trust shall
have the assignable option of obtaining the release of the collateral assignment
of the Policy to the Corporation. To obtain such release, the Trust or its
assignee shall pay to the Corporation the total amount of the premium payments
made by the Corporation on the Policy, less any indebtedness secured by the
Policy which was incurred by the Corporation and remains outstanding as of the
date of such termination, including any interest due on such indebtedness. Upon
receipt of such amount, the Corporation shall release the collateral assignment
of the Policy, by the execution and delivery of an appropriate instrument of
release.
b. If the Trust or its assignee fails to exercise such option within
such sixty (60) day period, then, at the request of the Corporation, the Trust
or its assignee shall execute any document or documents required by the Insurer
to transfer the interest of the Trust or its assignee in the Policy to the
Corporation. Alternatively, the Corporation may enforce its right
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to be paid from the cash surrender value of the Policy under the collateral
assignment of the Policy. In the event the Corporation receives an amount in
excess of its premium payments on the Policy, it shall be required to pay such
excess to the Trust.
9. Liquidated Damages if Corporation Fails to Pay Premiums.
Notwithstanding any other provision herein, if the Corporation fails to pay all
or part of a premium which it is required to pay under the terms of this
Agreement, and the Corporation fails to pay such amount within thirty (30) days
after receiving written notice thereof from the Owner, as liquidated damages for
such breach of this Agreement, the Corporation shall not be entitled to be
repaid for its premium payments on the policy in any event (whether upon the
termination of this Agreement, the cancellation of the policy or the death of
the surviving insured), and shall not collect any amounts hereunder or under the
Collateral Assignment or the policy. Any such breach of this Agreement shall not
relive the Corporation of its obligation to pay additional premiums under this
Agreement.
10. Insurer Not a Party. The Insurer shall be fully discharged from its
obligations under the Policy by payment of the Policy death benefit to the
beneficiary or beneficiaries named in the Policy, subject to the terms and
conditions of the Policy. 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 of 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 collateral
assignment executed by the Trust and filed with the Insurer in connection
herewith.
11. Named Fiduciary, Determination of Benefits, Claims Procedure
and Administration.
a. The Corporation is hereby designated as the named fiduciary under
this Agreement. 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. (1) CLAIM.
A 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 a
"Claimant") may file a written request for such benefit with the Corporation,
setting forth his or her claim. The request must be addressed to the Secretary
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the Corporation at its then principal place of business.
(2) CLAIM DECISION.
Upon receipt of a claim, the Corporation shall advise the Claimant that
a reply will be forthcoming within ninety (90) days and shall, in fact, deliver
such reply within such period. The Corporation may, however, extend the reply
period for an additional ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Corporation shall adopt
a written opinion, using language calculated to be understood by the Claimant,
setting forth: (a) the specific reason or reasons for such denial; (b) the
specific reference to pertinent provisions of this Agreement on which such
denial is based; (c) a description of any additional material or information
necessary for the Claimant to perfect his or her claim and an explanation why
such material or such information is necessary; (d) appropriate information as
to the steps to be taken if the Claimant wishes to submit the claim for review;
and (e) the time limits for requesting a review under subsection (3) and for
review under subsection (4) hereof.
(3) REQUEST FOR REVIEW.
Within sixty (60) days after the receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the Secretary
of the Corporation review the determination of the Corporation. Such request
must be addressed to the Secretary of the Corporation, at its then principal
place of business. The Claimant or his or her duly authorized representative
may, but need not, review the pertinent documents and submit issues and comments
in writing for consideration by the Secretary. If the Claimant does not request
a review of the Corporation's determination by the Secretary of the Corporation
within such sixty (60) day period, he or she shall be barred and estopped from
challenging the Corporation's determination.
(4) REVIEW OF DECISION.
Within sixty (60) days after the Secretary's receipt of a request for
review, he or she will review the Corporation's determination. After considering
all materials presented by the Claimant, the Secretary will render a written
opinion, written in a manner calculated to be understood by the Claimant,
setting forth the specific reasons for the decision and containing specific
references to the pertinent provisions of this Agreement on which the decision
is based. If special circumstances require that the sixty (60) day time period
be extended, the Secretary will so notify the Claimant and will render the
decision as soon as possible, but no later than one hundred twenty (120) days
after
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receipt of the request for review.
(5) REVIEW BY OTHER CORPORATE OFFICER.
If the Secretary of the Corporation is the Claimant or a member of the
family of the Claimant, the Corporation shall appoint another officer of the
Corporation (who is not a member of the Claimant's family) to make such
determination.
12. Amendment. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or their respective
successors or assigns.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Corporation and its successors and assigns, the Employee, his
Spouse and their successors, assigns, heirs, executors, administrators and
beneficiaries, and upon the Trust and its successors and assigns.
14. Notices. Any notice, consent or demand required or permitted to be
given under the provisions of this Agreement shall be in writing, and shall be
signed by the party giving or making the same. If such notice, consent or demand
is mailed to a party hereto, it shall be sent by United States certified mail,
postage prepaid, addressed to such party's last known address as shown on the
records of the Corporation. The date of such mailing shall be deemed the date of
notice, consent or demand.
15. Governing Law. This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, as of the day and year first above written.
OMG AMERICAS, INC.
By: /S/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
President
"Corporation"
By: /S/ XXXXXX XXX
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Xxxxxx Xxx
"Employee"
Xxxxxx and Xxxxxxx Xxx Irrevocable
Demand Trust U/A dated June 11, 1998
By: /S/ XXXXXX X. XXX, TRUSTEE
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Xxxxxx X. Xxx, Trustee
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EXHIBIT A
The following life insurance policy is subject to the
attached Split-Dollar Agreement:
Insurer Northwestern Mutual Life
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Insured Xxxxxx and Xxxxxxx Xxx
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Policy Number #00-000-000
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Face Amount $ 3,032,191
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Date of Issue September 24, 1998
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