EXHIBIT 10.9
ZERO CORPORATION
JOINT LIFE INSURANCE PLAN AND AGREEMENT
THIS THIRD AMENDMENT to the JOINT LIFE INSURANCE PLAN AND AGREEMENT dated
as of March 31, 1989, as amended effective as of April 1, 1994 and October 22,
1997 (the "Agreement"), by and between ZERO Corporation, a Delaware corporation
(hereinafter ZERO Corporation or a subsidiary thereof is called the "Company",
the "Corporation" or "ZERO"), and __________________ ("Employee").
WHEREAS, pursuant to the Agreement, Employee receives an insurance benefit,
the premiums for which are paid primarily by the Company; in part, they are paid
by the Employee to the extent of the economic benefit to the Employee as
established by the Internal Revenue Service; and
WHEREAS, the Company and Employee now wish to modify certain terms and
conditions of the Agreement and to set forth certain other agreements and
understandings, as more specifically provided hereinafter.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Amendments to Article SECOND. Article SECOND entitled "Policy
----------------------------
Ownership Subject to Collateral Assignment" is hereby amended by the addition of
the following sentence at the end of Article SECOND:
"For purposes of ownership of the Policy, the term 'Employee' shall include
an irrevocable life insurance trust as may be designated by the Employee."
2. No Further Modifications. Except as expressly amended and modified
------------------------
hereby, the terms of the Agreement remain in full force and effect.
3. Definitions. Unless otherwise defined herein, capitalized terms shall
-----------
have the meanings assigned in the Agreement.
4. Governing Law. This Second Amendment shall be subject to and
-------------
construed according to the laws of the State of California.
1
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment to the above described Agreement effective January 19, 1998.
ZERO CORPORATION
a Delaware corporation
By:
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and Chief
Executive Officer
EMPLOYEE
------------------------------
(name)
2
ZERO CORPORATION
JOINT LIFE INSURANCE PLAN AND AGREEMENT
THIS SECOND AMENDMENT to the JOINT LIFE INSURANCE PLAN AND AGREEMENT dated
as of March 31, 1989, as amended effective as of April 1, 1994 (the
"Agreement"), by and between ZERO Corporation, a Delaware corporation
(hereinafter ZERO Corporation or a subsidiary thereof is called the "Company",
the "Corporation" or "ZERO"), and _________________ ("Employee").
WHEREAS, pursuant to the Agreement, Employee receives an insurance benefit,
the premiums for which are paid primarily by the Company; in part, they are paid
by the Employee to the extent of the economic benefit to the Employee as
established by the Internal Revenue Service; and
WHEREAS, the Company and Employee now wish to modify certain terms and
conditions of the Agreement and to set forth certain other agreements and
understandings, as more specifically provided hereinafter.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Amendments to Article FIRST. Article FIRST entitled "Policy(ies)
---------------------------
subject to Agreement" is hereby amended by the addition of the following
sentence at the end of Article FIRST:
"In addition, the Corporation's interest in any such Policy will be
transferred to any grantor or "rabbi" trust ("Rabbi Trust") established
pursuant to Article FOURTH, paragraph F(b); provided that the transfer of
such interest shall be effected by the cancellation by both the Employee
and the Corporation of the Corporation's interest and the creation by the
Employee of a superceding interest in the Policy by execution of a
Collateral Assignment vesting in the Rabbi Trust."
2. Amendments to Article FOURTH. Article FOURTH entitled "Payment of
----------------------------
Premiums" is hereby amended as follows:
(a) The current paragraph appearing at the end of subparagraph E
(beginning "In the event that either...") is hereby changed to be subparagraph
"F", section (a) shall be deleted in its entirety, and "(b)" shall be deleted;
and thereafter subparagraph F shall be amended to read in its entirety:
3
"Deposit in a Rabbi Trust funds in an amount sufficient to pay 1) Net
Premium Advances and 2) the cash bonus calculated in accordance with
Article FOURTH subparagraph C above to the Employee's attainment of age 65
or the date referred to in Article SIXTH, subparagraph A(ii) hereof."
(b) The following sentence is added at the end of subparagraph F thereof:
"Upon the establishment of a Rabbi Trust, the Company shall require that
the Trustee cooperate with Employee or beneficiary as required in the
exercise by such Employee or beneficiary of all rights provided in the
terms and conditions of this Agreement and the Policy(ies), and shall
direct the Trustee to perform all duties and responsibilities as Collateral
Assignee under the Policies and to perform such duties and responsibilities
respecting administration of this Plan and the Policy(ies) as may be
required in the administration of the Trust, including but not limited to
the following:
(i) Receipt of Trustee copy of all statements and annual reporting
requirements directly from the Consultant, and assure that copies have been
or are delivered to Participants and to the Company, as well as provide
assistance to Participants and/or Beneficiary with respect to questions on
such statements and annual reports.
(ii) Assist Participant in the exercise of rights and options as may
be lawful and permitted by the Plans, including but not limited to
obtaining approvals and signatures as required on a timely basis.
(iii) Assure that the Trustee receives net premium advances in
accordance with the provisions of the Plan and that the Participant and/or
Beneficiary receives its unfettered right to benefits under the Policies.
(iv) Obtain the release from the Company or the Trustee on its behalf
of its interest in any Policy on which the Trustee has or will receive
reimbursement of net premium advances.
(v) Cooperate with the Participants and Consultant in regard to
paperwork and documentation regarding the premiums required to be paid to
the issuer on the Policies and the annual bonuses to be paid to the
Participants.
4
(vi) Notify Consultant of its obligation to issue notices to
Participants and Trustee as required by the Policies on the anniversary
date which is one year prior to termination of each Policy as provided on
the Payment Schedule.
(vii) On the date of termination of the Agreement, if net premium
advances have not been repaid, initiate steps to borrow or withdraw cash
value from the Policies for repayment of such net premium advances, and
provide a release of the Trust's assignment.
(viii) To assure that a lapse in coverage does not occur, confirm
that all net premium advances are paid to the insurer on each Policy.
(ix) Upon the death of a Participant, Trustee shall obtain a
certificate of death and notify ▇▇▇▇▇▇ Consulting, Inc., or its successor
("Consultant") of such death, and assist and cooperate with Consultant and
the insurer in the preparation and filing of any death claim with an
insurer. The Company and Beneficiaries shall also cooperate with the
Trustee in processing any death claims. Any insurance proceeds due under
the terms of this Agreement as the result of such death claim shall be
issued directly by the insurer to (i) the Trustee in the amount required to
reimburse the Trust for all net premium advances for the deceased
Participant by the Company and/or the Trustee, and (ii) to the
Beneficiary."
3. Amendment to Article FIFTH. The Collateral Assignment referred to in
--------------------------
Article FIFTH and attached as Schedule B dated ______________________________
shall be automatically replaced by the Collateral Assignment attached hereto as
Schedule B immediately prior to a Change in Control.
4. Amendment to Article SEVENTH. Article SEVENTH entitled "Obligations on
----------------------------
Termination" is hereby amended to add the following language at the end of
current subparagraph B:
"In the event death occurs after Employee's termination from employment
with the Company but prior to the termination of the Agreement, such base
pay shall be the Employee's annual rate of pay on the April 1 preceding
termination of employment."
5. Amendment to Schedule "B". The following sentence is added as the
-------------------------
sixth paragraph thereof:
"Assignee's interest hereunder may be assigned to one or more Rabbi Trusts,
as described in the Agreement."
5
6. No Further Modifications. Except as expressly amended and modified
------------------------
hereby, the terms of the Agreement remain in full force and effect.
7. Definitions. Unless otherwise defined herein, capitalized terms shall
-----------
have the meanings assigned in the Agreement.
8. Governing Law. This Second Amendment shall be subject to and construed
-------------
according to the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to the above described Agreement effective October 22, 1997.
ZERO CORPORATION
a Delaware corporation
By:
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and
Chief Executive Officer
EMPLOYEE
-------------------------------------
[Name]
6
AMENDMENT TO EXECUTIVE RETIREMENT
AND LIFE INSURANCE AGREEMENT
(SPLIT DOLLAR AGREEMENT)
THIS AMENDMENT to the SUPPLEMENTAL EXECUTIVE RETIREMENT AND LIFE INSURANCE
AGREEMENT dated as of March 31, 1989 (the "Agreement"), made and entered into
effective as of the 1st day of April, 1994, by and between ZERO Corporation, a
Delaware corporation (hereinafter ZERO Corporation or a subsidiary thereof is
called the "Corporation" or "ZERO"), and ("Employee").
WHEREAS, pursuant to the Agreement, Employee receives an insurance benefit,
the premiums for which are paid primarily by the Corporation; in part, they are
paid by the Employee to the extent of the economic benefit to the Employee as
established by the Internal Revenue Service; and
WHEREAS, the Corporation and Employee now wish to modify certain terms and
conditions of the Agreement and to set forth certain other agreements and
understandings, as more specifically provided hereinafter.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Amendments to Article FOURTH.
----------------------------
(a) The second full paragraph of subparagraph F of Article FOURTH of the
Agreement is hereby amended to read in its entirety as follows:
"In the event that either the Named Fiduciary (as defined below) or the
Board of Directors determines that a Change of Control appears likely, the
Corporation will take one of the following actions (or another similar
action if the Corporation and Employee mutually agree in writing) which
will be deemed effective automatically and concurrently with the 'Change of
Control':"
(b) Section (b) of subparagraph F of Article FOURTH of the Agreement is
hereby amended to read in its entirety as follows:
"(b) Deposit in a Rabbi Trust funds in an amount sufficient to pay 1) Net
Premium Advances and 2) the cash bonus calculated in accordance with
Article FOURTH subparagraph D above to the later of employee's attainment
of age 65 or the date referred to in Article SIXTH, subparagraph A(ii)
hereof."
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2. Amendment to Article SIXTH. Article SIXTH entitled "Termination of
--------------------------
Agreement" is hereby amended to delete the first statement and current
subparagraph A in their entirety and to insert in place thereof the following:
"Subject to the provisions of Article SEVENTH below, this Agreement shall
terminate upon the happening of any of the following events:
"A. (i) The anniversary date of the policy of life insurance provided
under this Agreement (April 1) after the termination of Employee's
employment with the Corporation for any reason, except termination by the
Corporation in anticipation of a 'Change of Control' or termination for any
reason following a 'Change of Control', or (ii) on April 1, 2010 if
termination by the Corporation in anticipation of a 'Change of Control' or
termination for any reason following a 'Change of Control'. Provided,
---------
however, in no event shall the termination date of this Agreement be less
--------
than ninety (90) days following the termination date of Employee's
employment."
3. Amendment to Article SEVENTH. Article SEVENTH entitled "Obligations
----------------------------
on Termination" is hereby amended to change the first sentence of current
subparagraph B in its entirety and to insert in place thereof the following:
"B. In the event that this Agreement is terminated by reason of the death
of the Employee (1) the payment of death benefits equal to the Net Premium
Advances shall be made to the Corporation under the Policy or Policies
issued in 1989, and (2) the payment of death benefits equal to the greater
of (i) the Net Premium Advances or (ii) the total death benefits less an
amount equal to three (3) times Employee's base pay shall be made to the
Corporation under the Policy issued in 1994."
4. Amendment to Article NINTH. The following paragraph shall replace
--------------------------
the last sentence of Article NINTH of the Agreement in its entirety:
"A claimant shall have the right to request a review of a final decision of
the Named Fiduciary by arbitration pursuant to the then rules of the
American Arbitration Association. Such request must be made by the
claimant within twenty (20) days of receipt of the final decision of the
Named Fiduciary. If arbitration is not requested, however, all actions of
the Named Fiduciary shall be conclusive on all persons interested in the
Plan except to the extent otherwise specifically indicated herein."
5. No Further Modifications. Except as expressly amended and modified
------------------------
hereby, the terms of the Agreement remain in full force and effect.
8
6. Definitions. Unless otherwise defined herein, capitalized terms shall
-----------
have the meanings assigned in the Agreement.
7. Governing Law. This Amendment shall be subject to and construed
-------------
according to the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
above described Agreement as of the day and year first above written.
ZERO CORPORATION, a Delaware
corporation
By:
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and
Chief Executive Officer
EMPLOYEE
--------------------------------
9
SUPPLEMENTAL EXECUTIVE
RETIREMENT AND LIFE INSURANCE AGREEMENT
(Split Dollar Agreement)
THIS AGREEMENT dated as of the 3lst day of March, 1989 (the
"Agreement"), is entered into by and between
(hereinafter called "Employee") and Zero Corporation, a Delaware
corporation, having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter Zero Corporation or a subsidiary
thereof is called the "Corporation").
RECITALS
A. Employee is employed by the Corporation and renders valuable services for
the benefit of the Corporation; and
B. Corporation desires to provide a supplemental benefit to the Employee in
order to retain the services of said employee; and
C. Corporation is willing to join with Employee for the mutual benefit of the
Corporation and Employee in an investment in a life insurance policy on
said Employee's life; and
D. Corporation will advance premium payments on the life insurance policy.
E. Employee will be the owner of the policy on Employee's life, will be
entitled to the benefit thereunder and will assign the policy as collateral
security for the repayment of amounts advanced by Corporation that may be
due and payable to Corporation from time to time in accordance with this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
FIRST: Policy(ies) subject to Agreement
--------------------------------
Employee owns or has applied to the Insurer named in Schedule A attached
hereto for a certain policy of life insurance on Employee's life in an initial
face amount set forth on schedule "A" attached hereto and made a part hereof.
Both Employee and Corporation will do everything reasonable to cause such policy
to be issued and kept in force. Policies of life insurance or amounts thereof
may be added to or deleted from this Agreement upon agreement of employee,
Corporation and Insurer by appropriate notation thereof on Schedule "A" together
with the respective signatures of Employee and Corporation for each such change,
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Page Two
addition or deletion. "Policy" as used hereinafter shall refer to any and all
policies of life insurance on Employee's life described from time to time on
Schedule "A", or which shall otherwise become subject to this Agreement.
SECOND: Policy Ownership Subject to Collateral Assignment
-------------------------------------------------
Employee shall remain the sole owner of the Policy subject to the
"Collateral Assignment" of same to be executed by Employee, as defined in
Article Fifth, as security for the repayment of any amounts advanced by
Corporation that may be or become due and payable to Corporation from time to
time as provided hereinafter. Subject to the terms of this Agreement and the
related Collateral Assignment, Employee may designate or change the beneficiary
of the Policy at any time without restriction by using the form attached hereto
as Schedule "C". The Corporation agrees to immediately notify the Insurer upon
receipt by the Corporation of such designation or change by the Employee.
THIRD: Owner's Other Rights in Policy(ies)
-----------------------------------
Subject to the provisions of Section Fourth Paragraph "D", Employee may
exercise rights of ownership under the terms of the Policy, including the right
to change the beneficiary of the policy, except that the Employee agrees not to
take any dividends in cash or to borrow against the cash value of the Policy,
without the written consent of the Corporation, as long as the Collateral
Assignment in favor of the Corporation shall remain outstanding.
Notwithstanding anything in this Agreement to the contrary, in no event will the
Employee take any action which would cause the cash value of the Policy to be
less than the amount of the Corporation's premium advances less any employee
premium contributions made pursuant to Section Fourth Paragraph "A" less any
amounts received by the Corporation under the Policy ("Net Premium Advances").
FOURTH: Payment of Premiums
-------------------
The premiums on the Policy shall be paid as follows:
A. The employee shall pay a portion of the premium ("Employee Premium
Contribution") equal to the lesser of:
(i) the rate established by the Internal Revenue Service for the cost of
life insurance protection (P.S. 58 rate) from time to time, or
(ii) the rate, if any, established by the Insurer for individual one (1)
year term life insurance available to all standard risks for that
amount of coverage at Employee's then attained age
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Page Three
For administrative convenience, the Employee shall remit to the Corporation or
have withheld from amounts due to them by the Corporation the amount of the
Employee Premium Contribution within 30 days of receipt of written notice that
such amount is due. The Corporation shall be responsible for making the premium
payment to the Insurer.
B. The Corporation shall pay the balance of the premium payment and have the
option to make such additional premium payments from time to time, in excess of
the minimum premium necessary to keep the Policy in force, as the Corporation
finds financially desirable with respect to funding the Policy over time.
C. Both Employee and Corporation contemplate that every effort will be made to
ensure that sufficient premiums will be paid hereunder to qualify the Policy for
favorable income tax treatment to both the Corporation and the Employee under
Section 7702 of the Internal Revenue Code of 1986, or as such may be amended
from time to time. Borrowings against the Policy are not permitted without the
written approval of both the Corporation and the Employee as long as the
Corporation shall not have recovered all of its Net Premium Advances.
D. The Corporation agrees to pay a cash bonus to the Employee in an amount
equal to any Employee Premium Contributions. In addition, to the extent that the
employee has compensation from such bonus, the Corporation agrees to pay to the
Employee annually a cash bonus sufficient to pay applicable state and federal
income taxes. Assuming a $1,000 Employee Premium Contribution under Paragraph A.
above and a combined state and federal tax rate of 34.7% (28% + [72% x 9.3%]),
the total cash bonus to the employee would be $1,531 calculated as follows:
$1,000/(100% - 34.7%) $ 1,531
E. If consolidated income from continuing operations of the Corporation before
provision for income taxes in any year that this Agreement is in effect is less
than $10 million, the Board of Directors of the Company may suspend the Net
Premium Advances for a maximum of two years if it is, in the sole judgment of
the Board of Directors, considered essential to maintain the financial well
being of the Corporation. The effect of any such suspension of premiums shall be
made up over the remaining term of the policy. However, notwithstanding the
foregoing, the Corporation will make the premium payments necessary to qualify
the Policy as life insurance under the appropriate provisions of the Internal
Revenue Code.
F. The Corporation and Employee recognize that a substantial portion of the
benefits will accrue in the latter years of the term of the Policy because it is
in the Corporation's interest to fund
12
Page Four
the Policy premiums in annual increments. The Corporation and Employee also
recognize that in the event of a "Change of Control" during the term of the
Policy, it would be in the interest of both parties to take actions to protect
the Employee's benefits under the Policy. For purposes of this Agreement
"Change of Control" means, after the effective date of this Agreement:
(i) There shall be consummated (A) any consolidation or merger of the
Corporation in which the Corporation is not the continuing or
surviving corporation or pursuant to which shares of the Corporation's
common stock would be converted into cash, securities or other
property, other than a merger of the Corporation in which the holders
of the Corporation's common stock immediately prior to the merger have
substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (B) any sales
lease, exchange or other transfer (in one transaction or a series of
transactions) of all, or more than 50%, of the assets of the
Corporation; or
(ii) The stockholders of the Corporation approve a plan or proposal for the
liquidation or dissolution of the Corporation; or
(iii) Any "person" (as defined in Sections 13(d) and 14(d) of the Securities
Exchange Act") other than a person owned by or directly or indirectly
managed by the Corporation, shall become the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), of 25 percent or more
of the Corporation's outstanding common stock
In the event that either the Named Fiduciary (as defined below) or the Board of
Directors determines that a Change of Control appears likely, the Corporation
shall initiate one of the following actions or another similar action, if the
Corporation and Employee mutually agree in writing, which shall be deemed
effective automatically and concurrently with the "Change of Control"
(a) Obtain an irrevocable letter of credit, conditioned only on the passage of
time, to fund 1) Net Premium Advances and 2) the cash bonus calculated in
accordance with Section Fourth Paragraph "D" above to the Employee's
attainment of age 65 ("Normal Retirement Date"), or
(b) Deposit in a Rabbi Trust funds in an amount sufficient to pay 1) Net
Premium Advances and 2) the cash bonus calculated in accordance with
Section Fourth Paragraph D above to the employee's attainment of age 65
(Normal Retirement Date).
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Page Five
FIFTH: Execution of Collateral Assignment
----------------------------------
In consideration for the covenants made by the Corporation, Employee agrees
to execute and deliver to the Corporation a Collateral Assignment in favor of
the Corporation in the form set forth in Schedule B attached hereto.
SIXTH: Termination of Agreement
------------------------
Except as provided in Article Seventh below, this Agreement shall terminate upon
the happening of any of the following events:
A. Termination of Employee's employment with the Corporation for any reason,
except termination by the Corporation in anticipation of a "Change of Control"
or termination for any reason following a "Change of Control".
B. Assignment, other than the Collateral Assignment which secures the
repayment of the Corporation's Net Premium Advances, of the Policy by the
Employee.
C. By mutual consent of the parties hereto.
D. Death of the Employee
SEVENTH: Obligations on Termination
--------------------------
In the event that this Agreement is terminated under Article Sixth above,
Employee or Insurance Company shall satisfy the Corporation's collateral
interest in the Policy by paying to the Corporation an amount equal to the Net
Premium Advances provided, however, that the amount paid to the Corporation
shall not exceed the cash value of the Policy if terminated during life or the
death benefit in the event the Agreement terminates for reason of death. The
payment terms under which the Corporation may be reimbursed for its said
collateral interest hereunder by Employee are as follows:
A. In the event of termination for a reason other than Death of Employee,
(i) Employee may, with Corporation's written consent, borrow an amount
equal to the Net Premium Advance from the cash surrender value of the
Policy. The Corporation agrees that it will cooperate with the
Employee to borrow the funds. Such borrowing shall be by a check
payable to the Corporation or,
(ii) Employee may make a lump sum payment to the Corporation of the entire
sum of the Net Premium Advances within ninety (90) days after the
termination of this Agreement. Such payment shall be by a cashiers
check.
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Page Six
Upon receipt of the repayment of the Net Premium Advances, the
Corporation shall immediately release the collateral assignment of the
Policy, by the execution and delivery of an appropriate instrument of
release to the Insurer and such assignment thereafter shall be deemed
null and void.
B. In the event of termination for reason of the death of the Employee, the
payment of death benefits in an amount equal to the Net Premium Advances
shall be made to the Corporation. The balance of the death benefit provided
under the Policy, if any, shall be paid directly to the beneficiary or
beneficiaries designated by the Employee, in the manner and in the amount
or amounts provided in the beneficiary designation of the Policy. The
parties hereto agree that the beneficiary designation provision of the
Policy shall conform to the provisions hereof. Within the (10) days of
Corporation's notice of Employee's death, Corporation shall file with the
Insurer the Affidavit required under the Collateral Assignment by and
between Corporation and Employee, stating the Net Premium Advances due to
the Corporation under this Agreement and stating that upon receipt of the
repayment of the Net Premium Advances, the Corporation shall release the
collateral assignment of the Policy, by execution and delivery of an
appropriate instrument of release to the Insurer.
C. The Corporation may pursue all available legal remedies to enforce
collection of the Net Premium Advances under this Agreement if Employee
shall be in default and shall be entitled to, among other things, award of
reasonable attorneys' fees.
EIGHTH: Designation of "Named Fiduciary"
--------------------------------
The Board of Directors of the Corporation shall designate a Named
Fiduciary, who shall be responsible for the management, control and
administration of the Split Dollar plan established under this Agreement. Such
Named Fiduciary may allocate aspects of the management and operational
responsibilities of this plan, including the employment of professional advisors
and the delegation of ministerial duties to qualified individuals from time to
time. Unless otherwise provided the Secretary of this Corporation shall serve as
the Named Fiduciary of this Plan.
NINTH: Claims Procedure
----------------
The following claims procedures shall be used for the Plan:
A. The Named Fiduciary shall notify the employee and, where appropriated the
beneficiaries of the Policy, of their right to claim benefits under the claims
procedures, shall make forms
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Page Seven
available for filing of such claims, and shall provide the name of the person or
persons with whom such claims should be filed.
B. The Named Fiduciary shall establish procedures for action upon claims
initially made and the communication of a decision to the claimant promptly and,
in any event, not later than sixty (60) days after the date of the claim. The
claim may be deemed by the claimant to have been denied for purposes of further
review described below in the event a decision is not furnished to the claimant
within such sixty (60) day period. Every claim for benefits which is denied
shall be denied by written notice setting forth in a manner calculated to be
understood by the claimant (1) the specific reason or reasons for the denial,
(2) specific reference to any provisions of this Plan on which denial is based,
(3) description of any additional material or information necessary for the
claimant to perfect his claim with an explanation of why such material or
information is necessary, and (4) an explanation of the procedure for further
reviewing the denial of the claim under the Plan.
C. The Named Fiduciary shall review all claim denials. The review given after
denial of any claim shall be a full and fair review with the claimant or his
duly authorized representative having one hundred eighty (180) days after
receipt of denial of his claim to request such review, having the right to
review all pertinent documents and the right to submit issues and comments in
writing.
D. The Named Fiduciary shall issue a decision not later than sixty (60) days
after receipt of a request for review from a claimant unless special
circumstances, such as the need to hold a hearing, require a longer period of
time, in which case a decision shall be rendered as soon as possible but not
later than one hundred and twenty (120) days after receipt of the claimant's
request for review. The decision on review shall be in writing and shall
include specific reasons for the decision written in a manner calculated to be
understood by the claimant with specific reference to any provisions of this
Plan on which the decision is based. All actions of the Named Fiduciary shall
be conclusive on all persons interested in the Plan except to the extent
otherwise specifically indicated herein.
TENTH: Execution of Necessary Documents
--------------------------------
The parties hereto agree to execute any documents which may be
appropriately necessary to carry out the purpose and the intent of this
Agreement.
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Page Eight
ELEVENTH: Amendment
---------
This Agreement may not be amended or modified orally and may only be
amended or modified by a written instrument signed by the parties hereto.
TWELFTH: Private Agreement
-----------------
The parties hereto agree that this is a private agreement to which the
Insurer is not a party and for which it can assume no responsibility, and the
Insurer is not to be deemed a third party beneficiary, hereunder and therefore,
a copy need not be filed with the Insurer. Nothing in this Agreement nor in any
modifications, amendments or supplements hereto shall in any way be construed to
enlarge, charge, vary or in any way effect the obligations of the Insurer as
expressly provided by the Policy of insurance issued by it.
THIRTEENTH: Binding
-------
This Agreement shall be binding upon the parties hereto and their
successors, assigns, executors, or administrators and beneficiaries.
FOURTEENTH: Notices
-------
All notices required by this Agreement must be in writing and sent by
certified or registered mail to the then current or last known address of each
party hereto.
FIFTEENTH: Applicable Law
--------------
This Agreement shall be subject to and construed according to the laws of
the State of California.
Whenever the Policy is referred to in this Agreement, the terms of the
Policy shall supersede the summary description herein.
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Page Nine
Executed in Los Angeles, California, as of the date first
above written.
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
ZERO Corporation
-------------------------------------
Participant
18
SCHEDULE "A"
ZERO CORPORATION
Supplemental Executive Retirement and Life Insurance Agreement
Summary of Insurance Policies
Issued by: Pacific Mutual Life Insurance Co.
Face Amount:
Policy Number:
Type of Contract: Whole Life
Initially Determined Premium:
Insured:
Beneficiary:
Date of Policy: April 1, 1989
19
ZERO CORPORATION
Supplemental Executive Retirement and Life Insurance
Collateral Assignment
THIS ASSIGNMENT is made and entered into effective this first day of April,
1989, by the undersigned as owner (the "Owner") of the certain Life Insurance
Policy No. issued by Pacific Mutual Life Insurance Company
("Insurer") and any supplementary contracts issued in connection therewith,
(said policy and contracts being herein called tire "Policy"), to ZERO
CORPORATION (the "Assignee"), a Delaware Corporation with principal offices at
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NOW, THEREFORE, for value received, the undersigned Owner hereby assigns,
transfers and sets over to the Assignee, its successors and Assigns, the
specific rights in the Policy as stated in the ZERO CORPORATION Supplemental
Retirement and Life Insurance Plan by and between Assignee and Owner dated March
31, 1989.
Pacific Mutual accepts no responsibility for the determination of the
respective interests or rights of the Owner and Assignee between or among
themselves or their successor or successors. The respective interests or rights
of the Owner and Assignee shall be as their interest may appear under the ZERO
CORPORATION Supplemental Retirement and Life Insurance Plan, Insurer not being a
party to said Plan, or the administration thereof, and shall not be responsible
for such interpretation.
Insurer is not a party to any other document or assignment unless it has
specifically agreed in writing, signed by an officer of the Insurer at its Home
Office, to be bound by such document or assignment.
Insurer shall have the right to rely upon the sole instructions and
representations of assignee (as given to Insurer by AFFIDAVIT signed by Assignee
alone) to exercise each and every right under the policy except that (a)
Assignee may not borrow against the cash value of the policy or (b) change the
beneficiary (ies) without the written consent of the owner of the policy. No
signature of Owner shall be required except as noted above. Owner and Assignee
specifically indemnify Insurer of all actions undertaken by Insurer pursuant to
said AFFIDAVIT. Any such AFFIDAVIT shall be in the form of Appendix A hereto.
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IN WITNESS WHEREOF, the undersigned Owner has executed this Assignment on
the date and year first above written. The undersigned Assignee by the
acceptance of this Assignment agrees to the conditions and provisions set forth
herein.
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Witness Owner
ZERO CORPORATION
By:
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President and Chief Executive
Officer
(Seal of Corporation)
The Insurer has retained the original Assignment, dated _______________ and is
returning a copy of this document. The Insurer assumes no responsibility for
the validity of this document.
Pacific Mutual Life Insurance Company
By: _______________________________
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