Split-Dollar Agreement - The Men's Wearhouse Inc., David H. Edwab and George Zimmer
SPLIT-DOLLAR AGREEMENT
THIS AGREEMENT made and entered into as of this 25th day of May, 1995,
by and between THE MEN'S WEARHOUSE, INC., a Texas corporation, (hereinafter
referred to as the "Corporation"), DAVID H. EDWAB, an individual residing in the
State of California (hereinafter referred to as the "Employee"), and GEORGE
ZIMMER, Co-Trustee of the David H. Edwab 1995 Irrevocable Trust (hereinafter
referred to as the "Owner"),
WHEREAS, the Employee is employed by the Corporation;
WHEREAS, the Employee wishes to provide life insurance protection for
his family in the event of his death, under policies of life insurance insuring
his life (hereinafter referred to as the "Policies"), which Policies have been
issued by Pacific Mutual Insurance Company ("Insurer"), policy number
1A22371330, dated April 4, 1991, in the face amount of $500,000 and policy
number 1A22827080, Dated April 4, 1991, in the face amount of $500,000;
WHEREAS, the Corporation is willing to pay a portion of the premiums
due on the Policies as an additional employment benefit for the Employee, on the
terms and conditions hereinafter set forth;
WHEREAS, Owner is the Owner of the Policies and, as such, possesses all
incidents of Ownership in and to the Policies;
WHEREAS, the Corporation wishes to have the Policies collaterally
assigned to it by the Owner, in order to secure the repayment of the amounts
which it will pay toward the premiums on the Policies; and
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
1. PURCHASE OF POLICIES. The Owner has purchased the Policies from the
Insurer. The parties hereto have taken all necessary action to cause the Insurer
to issue the Policies, and shall take any further action which may be necessary
to cause the Policies to conform to the provisions of this Agreement. The
parties hereto agree that the Policies shall be subject to the terms and
conditions of this Agreement and of the collateral assignments filed with the
Insurer relating to the Policies. All capitalized words and phrases not
otherwise defined herein shall have the same meaning such words and phrases have
in the Policies.
2. OWNERSHIP OF POLICIES. The Owner shall be the sole and absolute
Owner of the Policies, and may exercise all Ownership rights granted to the
Owner thereof by the terms of the
<PAGE>
Policies, including, but not limited to, the right to elect and to change the
Death Benefit Option, the Face Amount of Insurance, and the investment options
of the Policies, except as may otherwise be provided herein.
3. PAYMENT OF PREMIUMS.
a. The Owner will direct the Insurer to provide the
Corporation with copies of premium notices on the Policies. No later than thirty
(30) days prior to the due date of each Policies' premium, the Corporation shall
notify the Employee and the Owner 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 (prorated if the premium is
being paid monthly), measured by the lower of the PS 58 rate, set forth in
Revenue Ruling 55-747 (or the corresponding applicable provision of any future
Revenue Ruling), or the current published premium rate of the Insurer 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 payment shall be
recovered by the Corporation as provided herein.
b. On or before the due date of each Policies premium, or
within the grace period provided therein, the Corporation shall pay the full
amount of the planned periodic premium to the Insurer, and shall, upon request,
promptly furnish the Employee evidence of timely payment of such premium. Except
with the consent of the Employee and the Owner, the Corporation shall not pay
less than such planned periodic premium, but it may, in its discretion, at any
time and from time to time, subject to acceptance of such amount by the Insurer,
pay more than such planned periodic premium or make the premium payments on the
Policies. 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 beneficiary of the Policies.
4. COLLATERAL ASSIGNMENT. To secure the repayment to the Corporation of
the amount of the premiums on the Policies paid by the Corporation hereunder,
the Owner has, contemporaneously herewith, assigned the Policies to the
Corporation as collateral. The collateral assignment of the Policies to the
Corporation hereunder shall not be terminated, altered or amended by the Owner,
without the express written consent of the Corporation. The parties hereto agree
to take all action necessary to cause such collateral assignments to conform to
the provisions of this Agreement.
5. LIMITATIONS ON OWNER'S RIGHT IN POLICIES. Except as provided herein,
the Owner shall not sell, assign, transfer, borrow against or withdraw from the
cash surrender value of the Policies, surrender or cancel the Policies, change
the beneficiary designation provisions of the Policies, decrease the aggregate
face amount of insurance, make or change the allocation of the Policies Account
established pursuant to the terms of the Policies among the various investment
2
<PAGE>
options under the Policies, nor change the Death Benefit Option provisions
thereof without, in any such case, the express written consent of the
Corporation.
6. COLLECTION OF DEATH PROCEEDS.
a. Upon the death of the Employee, the Corporation and the
Owner shall cooperate in taking whatever action is necessary to collect the
death benefit provided under the Policies; when such benefits have been
collected and paid as provided herein, this Agreement shall thereupon terminate.
b. Upon the death of the Employee, the Corporation shall have
the unqualified right to receive a portion of the death benefit of the Policies
equal to the total amount of the premiums paid by it hereunder with respect to
the Policies, reduced by any outstanding indebtedness which was incurred by the
Corporation and secured by the Policies, including any interest due on such
indebtedness. The balance of the death benefit provided under the Policies, if
any, shall be paid directly to the Owner, in the manner and in the amount or
amounts provided in the beneficiary designation provisions of the Policies. In
no event shall the amount payable to the Corporation hereunder exceed the death
benefit of the Policies payable at the death of the Employee. No amount shall be
paid from such death benefit to the Owner until the full amount due the
Corporation hereunder has been paid. The parties hereto agree that the
beneficiary designation provisions of the Policies 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
Policies upon the death of the Employee and in lieu thereof the Insurer refunds
all or any part of the premiums paid for the Policies, such amount shall first
be paid to Corporation until it shall have received the return of all premiums
paid by it, reduced by the amount of any outstanding indebtedness which was
incurred by the Corporation and secured by the Policies, including any interest
due on such indebtedness and any remaining amount shall be paid to the Owner.
7. TERMINATION OF THE AGREEMENT DURING THE EMPLOYEE'S LIFETIME.
a. This Agreement shall terminate, during the Employee's
lifetime, without notice, upon the occurrence of any of the following events:
(a) total cessation of the Corporations's business; (b) bankruptcy, receivership
or dissolution of the Corporation; (c) termination of the Employee's employment
by the Corporation (other than by reason of his death); (d) mutual consent of
the parties; or (e) failure of both the Employee and the Owner to timely pay to
the Corporation the Employee's portion of the premium, if any, due hereunder,
unless the Corporation elects to make such payment on behalf of the Employee, as
provided herein.
b. In addition, either the Employee or the Owner may terminate
this Agreement, while no premium under the Policies is overdue, by written
notice to the Corporation. Such termination shall be effective as of the date of
such notice.
3
<PAGE>
8. DISPOSITION OF THE POLICIES ON TERMINATION OF THE AGREEMENT DURING
THE EMPLOYEE'S LIFETIME.
a. For sixty (60) days after the date of the termination of
this Agreement during the Employee's lifetime, the Owner shall have the option
of obtaining the release of the collateral assignments of the Policies to the
Corporation. To obtain such release with respect to the Policies, the Owner
shall repay to the Corporation the total amount of the premium payments made by
the Corporation hereunder with respect to the Policies less any indebtedness
secured by the Policies 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 Policies, by the execution and delivery of an
appropriate instrument of release.
b. If the Owner fails to exercise the option in "a" above
within such sixty (60) day period, then the Corporation shall have the right to:
(1) Receive the Policies, which right shall be
exercised by the Corporation, if at all, by
written notice to the Owner; upon receipt of
the Corporation's written notice, the Owner
shall execute any document or documents
required by the Insurer to transfer the
interest of the Owner in the Policies to the
Corporation; or
(2) Enforce its right to be repaid the total
amount of the premium payments made by the
Corporation hereunder, less any indebtedness
secured by the Policies which was incurred
by the Corporation and remains outstanding
as of the date of such termination,
including any interest due on such
indebtedness (the "Repayment Amount") from
the cash surrender value of the Policies
under the collateral assignment of the
Policies, which right shall be exercised by
the Corporation, if at all, in accordance
with the terms of said collateral
assignment. If the Repayment Amount is
greater than the then cash surrender value
of the Policies, then, upon receipt of
written notice of such fact, the Owner shall
be liable to and shall pay to the
Corporation an amount equal to such
differences. If the then cash surrender
value of the policy exceeds the Repayment
Amount, such excess shall be paid to the
Owner.
Upon the Corporation's receipt of the
Policies or the Repayment Amount, as the
case may be, neither the Owner nor the
Owner's successors, assigns or beneficiaries
shall have any further interest in and to
the Policies, either under the terms thereof
or under this Agreement.
4
<PAGE>
9. INSURERS NOT PARTIES. The Insurer shall be fully discharged from its
obligations under the Policies by payment of the insurance benefits under the
Policies to the beneficiary or beneficiaries named in the Policies, subject to
the terms and conditions of the Policies. 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
Policies, except insofar as the provisions hereof are made a part of the
Policies by the collateral assignment executed by the Owner and filed with such
Insurer in connection herewith.
10. 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 President of 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.
5
<PAGE>
(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 a special committee (the "Committee") of the Board of Directors of
the Corporation made up of all non-employee directors of the Corporation review
the determination of the Corporation. Such request must be addressed to the
Secretary of the Corporation, at the Corporation's 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 Corporation. If the Claimant does not request a
review of the Corporation's determination by the Committee 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, the Committee will review the Corporation's
determination. After considering all materials presented by the Claimant, the
Committee will render a written opinion, written in a manner calculated to be
understood by the Claimant, setting froth 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 Committee will so notify the Claimant and
will render the decision as soon as possible, but no later than one hundred
twenty (120) days after receipt of the request for review.
11. 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, and may not be otherwise terminated except as provided
herein.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and assigns, and the Employee,
the Owner, and their respective successors, assigns, heirs, executors,
administrators and beneficiaries.
13. NOTICE. 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.
14. 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 California.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed multiple original
copies of this Agreement the day and year first above written.
THE MEN'S WEARHOUSE, INC.
By: /s/ HARRY M. LEVY
----------------------------
Name: Harry M. Levy
--------------------------
Title: Senior Vice President
-------------------------
"Corporation"
/s/ DAVID H. EDWAB
--------------------------------
DAVID H. EDWAB
"Employee"
/s/ GEORGE ZIMMER
--------------------------------
George Zimmer, Co-Trustee
THE DAVID H. EDWAB 1995
IRREVOCABLE TRUST
7
<PAGE>
SPLIT DOLLAR COLLATERAL ASSIGNMENT
FOR VALUE RECEIVED, the undersigned owner (hereafter the "Assignor")
assigns, transfers and set over to THE MEN'S WEARHOUSE, INC., (hereafter the
"Assignee"), its successors or assigns, certain rights in and to the life
insurance policies 1A22371330 and 1A22827080, issued by Pacific Mutual Insurance
Company (the "Insurer") on April 4, 1991, in the amount of $500,000 each (the
"Policies"), and any and all supplemental benefit riders or agreements issued
under said Policies, issued by Insurer, Insuring the life of DAVID H. EDWAB,
subject to all the terms and conditions of the Policies and this Assignment and
to all superior liens, if any, which the Insurer or any prior Assignee may have
against the Policies. The Assignor by this instrument and the Assignee by
acceptance of the Assignment jointly and severally agree to the conditions and
provisions hereof. This Assignment is made and the Policies are to be held as
collateral security for any and all liabilities of the Assignor to the Assignee,
either now existing or that may hereafter arise between the Assignor or any
successors or assigns and the Assignee under that certain Split-Dollar
Agreement, dated as of May __, 1995, with regard to the Policies.
1. (a) It is expressly agreed that the Assignee shall have the
following rights in the Policies:
(1) the right to make and receive loans against the
Policies (from the Insurer or otherwise), to the
extent of the aggregate premiums paid by the Assignee
on the Policies;
(2) the right to release this Assignment to the Assignor
or its assigns;
(3) the right to surrender the Policies and to receive
the Policies cash value and any dividend credits
outstanding (but not in excess of the aggregate
premiums paid by the Assignee on the Policies); and
(4) the right to receive from the death proceeds of the
Policies, and to elect an income settlement option
with respect thereto, an amount equal to the
aggregate premiums paid by the Assignee on the
Policies, but reduced by any indebtedness (together
with any unpaid interest) incurred by the Assignee on
the Policies.
(b) Except as provided in Paragraph (a) above, all other rights in
the Policies including but not limited to the right to
designate and change the beneficiary of the Policies and the
right to make loans against or withdrawals from the Policies
and to receive any cash values and dividend credits
outstanding in excess of aggregate premiums paid by the
Assignee on the Policies, are expressly reserved to the
Assignor and are therefore excluded from this Assignment.
1
<PAGE>
(c) For purposes of paragraphs (a) and (b) above, the signature of
either the Assignor or the Assignee shall be adequate. Both
the Assignor and the Assignee acknowledge that, between
themselves, they are bound by the limitations of this
Assignment and that the Insurer will recognize the signature
of either.
2. This Assignment does not change the Insurer's right under the "Policy
Loan" provision of the Policies to charge interest on any Policies'
loan. If interest is not paid under the terms of the Policies, the
Insurer has the right to add such interest to the unpaid loan from
whatever cash value remains regardless of who is entitled to that cash
value under the terms of this Assignment.
3 . For purposes of this Assignment, aggregate premiums paid by the
Assignee on the Policies shall exclude premiums for any extra benefit
riders or agreements issued under the Policies.
4. Any death proceeds of the Policies in excess of the amount payable to
the Assignee shall be paid by the Insurer directly to the beneficiary
named under the Policies.
5. All provisions of this Assignment shall be binding upon the executors,
administrators, successors or assigns of the Assignor.
6. All Policies' options and designations in effect as of the date of this
Assignment shall remain in effect unless specifically changed by this
Assignment or by action taken thereafter consistent with this
Assignment.
7. The Insurer is hereby authorized to recognize the Assignee's claim of
right hereunder without investigating the validity or amount thereof,
the giving of notice, or the existence or amount of any liabilities of
the Assignor to the Assignee. Payment by the Insurer of any or all
death proceeds of the Policies to the Assignee in reliance upon an
affidavit of any officer of the corporation as to the share of death
proceeds due it shall be a full discharge of the Insurer for such share
and shall be binding on all parties claiming any interest under the
Policies.
Signed at Fremont, California on May 25, 1995
---------------------
(City and State)
/s/ HARRY M. LEVY /s/ GEORGE ZIMMER
--------------------------- --------------------------------
Witness Owner of the Policy
GEORGE ZIMMER, CO-TRUSTEE, THE
DAVID H. EDWAB IRREVOCABLE TRUST
2