Split-Dollar Agreement - The Men's Wearhouse Inc. and Eric Lane
SPLIT-DOLLAR AGREEMENT
THIS AGREEMENT by and between THE MEN'S WEARHOUSE, INC., a Texas
corporation, (hereinafter referred to as the "Corporation"), and ERIC
LANE,(hereinafter referred to as the "Employee"),
WHEREAS, the Corporation and the Employee entered into an oral split
dollar arrangement on August 22, 2001; and
WHEREAS, this Agreement is a memorialization of the previous oral
agreement; and
WHEREAS, the Employee is employed by the Corporation; and
WHEREAS, the Employee has insured his life for the benefit and
protection of his family under policies issued or to be issued under the
Agreement; and
WHEREAS, the Corporation wants to help the Employee provide insurance
for benefit and protection of his family by contributing towards the payment of
premiums due on such policies on the life of the Employee; and
WHEREAS, the Employee is the owner of the policies of insurance on his
life acquired pursuant to the terms of this Agreement; and
WHEREAS, the Corporation wishes to have such policies collaterally
assigned to it by the Employee in order to secure repayment of the amounts which
it has and will pay towards the premiums on such policies; and
WHEREAS, it is the intent of the Corporation and the Employee that this
will be a split dollar arrangement as described in Revenue Ruling 64-623 and
Revenue Ruling 66-110; and
WHEREAS, this Agreement is effective as of August 22, 2001;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
1. PURCHASE POLICIES. The Employee has applied or will apply for
insurance policies on his life. As and when the Policies are issued, the policy
number and the policy of insurance shall be recorded on Schedule A attached
hereto and the Policies shall be subject to the terms and conditions of this
Agreement and of the collateral assignment filed with the insurance company
("Insurer") relating to such policy. All insurance policies on the life of the
Employee shall be referred to as the "Policies."
2. OWNERSHIP OF POLICIES. The Employee 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 Policies, including, but not limited to, the
right to elect and to change the death benefit
<PAGE>
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 Employee 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 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 Table 2001 rate, set forth in IRS Notice 2002-8 (or the
corresponding applicable provision of any future revenue ruling regulation,
notice or other guidance issued by the IRS), or the current published premium
rate of the Insurer for annually renewable term insurance for standard risks as
specified in Revenue Ruling 66-110 (or the corresponding applicable provision of
any future revenue ruling, regulation, notice or guidance issued by the IRS).
The Employee shall pay such required contribution to the Corporation prior to
the premium due date. If the Employee does not make 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 Policy 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, 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 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 Employee 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
Employee, 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 EMPLOYEE'S RIGHT IN POLICIES. Except as provided
herein, the Employee 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 options under the Policies, nor change the death benefit
option provisions thereof without, in any such case, the express written consent
of the Corporation.
<PAGE>
6. COLLECTION OF DEATH PROCEEDS.
a. Upon the death of the Employee, the Corporation 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 beneficiary, 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 beneficiary 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
beneficiary.
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 the Employee 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, the Employee 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.
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 Employee 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 Employee
shall repay to the Corporation the total amount of the premium
<PAGE>
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 Employee 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 Employee; upon receipt
of the Corporation's written notice, the Employee shall execute any
document or documents required by the Insurer to transfer the interest
of the Employee 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 Employee 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 Employee.
Upon the Corporation's receipt of the Policies or the Repayment
Amount, as the case may be, neither the Employee nor the Employee's
successors, assigns or beneficiaries shall have any further interest in
and to the Policies, either under the terms thereof or under this
Agreement.
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 Employee 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
<PAGE>
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.
(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 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
<PAGE>
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
and his 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.
IN WITNESS WHEREOF, the parties hereto have executed multiple original
copies of this Agreement on January 14, 2002.
THE MEN'S WEARHOUSE, INC.
By: /s/ GEORGE ZIMMER
---------------------------------------
Name: George Zimmer
---------------------------------------
Title: Chairman and Chief Executive Officer
"Corporation"
/s/ ERIC LANE
-------------------------------------------
ERIC LANE
"Employee"
<PAGE>
SCHEDULE A
The following life insurance policies are subject to the Split Dollar
Agreement by and between THE MEN'S WEARHOUSE, INC. and ERIC LANE effective
August 22, 2001.
1. Insurance Company: Pacific Life Insurance Company
2. Policy No.: VP62454500.
3. Date Issued: August 22, 2001
4. Face Amount: $2,000,000.00