Exhibit 10.6
SPLIT-DOLLAR INSURANCE AGREEMENT
This Split-Dollar Insurance Agreement (this "Agreement") is made and
entered into as of the 17th day of January, 1997, by and between BUCA, INC., a
Minnesota corporation (hereinafter referred to as the "Corporation"), and JOSEPH
P. MICATROTTO ("Employee").
WITNESSETH:
WHEREAS, Employee is employed by the Corporation; and
WHEREAS, the Employee has purchased and is the owner of a life insurance
policy on the life of the Employee (hereinafter referred to as the "Policy")
which is described in Exhibit A attached hereto and by this reference made a
part hereof. The Policy has been issued by the New England Variable Life
Insurance Company (hereinafter referred to as the "insurer") and is owned by
Employee; and
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; and
WHEREAS, the Employee is the owner of the Policy and, as such, possesses
all incidents of ownership in and to the Policy except for the Collateral
Assignment as hereinafter defined; and
WHEREAS, the Corporation wishes to have the Policy collaterally assigned to
it by the Employee pursuant to the Collateral Assignment dated as of even date
herewith (hereinafter referred to as the "Collateral Assignment"), in order to
secure the repayment of the amounts which it will pay toward the premiums on the
Policy; and
WHEREAS, the parties intend by the Collateral Assignment that the
Corporation shall receive the right to such repayment and certain other rights
as specified herein, with the Employee retaining all other ownership rights in
the Policy;
NOW, THEREFORE, in consideration of the premises and of the mutual promises
contained herein, the parties hereto agree as follows:
1. Purchase of Insurance. Employee has made application for and purchased
the Policy from the Insurer in the total face amount of $1,000,000. The parties
hereto agree that the Policy shall be subject to the terms and conditions of
this Agreement and to the Collateral Assignment filed with the Insurer relating
to the Policy.
2. Ownership of Insurance.
a. Subject to the Collateral Assignment, Employee shall remain the
sole and absolute owner of the Policy, and may exercise all ownership
rights granted to Employee thereof by the terms of the Policy, except as
may otherwise be provided
herein.
b. It is the intention of the parties to this Agreement that subject
to the Collateral Assignment executed by the Employee to the Corporation in
connection therewith, that the Employee shall retain all rights which the
Policy grants to the owner thereof, except the right of the Corporation to
be repaid the Corporation Reimbursement Amount, as that term is defined in
paragraph 4 below. Specifically, but without limitation, the Corporation
shall neither have nor exercise any right as collateral assignee of the
Policy which could in any way defeat or impair the Owner's or Owner's
beneficiaries' right to receive the cash surrender value or the death
benefit of the Policy, in excess of the amount due the Corporation
hereunder. All provisions of this Agreement and of the Collateral
Assignment shall be construed so as to carry out such intention.
3. Payment of Premiums on Policy. On or before the due date for the payment
of each semi-annual premium on the Policy, or within the grace period provided
therein, the Corporation shall pay the sum of Six Thousand and 00/100
($6,000.00) Dollars to the Insurer and Employee agrees to pay the balance of the
premium, and shall, upon request, promptly furnish the Corporation 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, as a result of its payment of such
premium. The parties acknowledge that Employee is also making premium payments
to the Insurer.
4. Collateral Assignment of Policy.
a. The "Corporation Reimbursement Amount" shall be equal to the greater
of (i) the total amount which the Corporation shall have paid toward the
premiums on the Policy, or (ii) the cash surrender value of the Policy.
b. To secure the repayment to the Corporation of the Corporation
Reimbursement Amount, the Employee has, contemporaneously herewith,
assigned the Policy to the Corporation as collateral, pursuant to the
Collateral Assignment. The Collateral Assignment specifically limits the
right of the Corporation thereunder to the repayment of the Corporation
Reimbursement Amount. Such repayment shall be made from the cash surrender
value of the Policy (as defined therein) if this Agreement is terminated or
if the Employee surrenders or cancels the Policy, or from the death
proceeds of the policy if the Employee should die while the Policy and this
Agreement remain in force. The collateral assignment of the Policy 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
assignment to conform to the provisions of this Agreement.
c. Employee shall take no action with respect to the Policy which
would in any way compromise or jeopardize the Corporation's right to be
repaid the
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Corporation Reimbursement Amount without the express written consent of the
Corporation. The Employee may not pledge or assign the Policy, except as
expressly permitted by Paragraph 4 hereof. For purposes of this Agreement
the term "cash surrender value" means the cash surrender value of that
portion of the Policy established by premiums paid by the Corporation.
5. Death Claims. The Corporation shall have the unqualified right to
receive a portion of such death benefit equal to the Corporation Reimbursement
Amount. The balance of the death benefit provided under the Policy, if any,
shall be paid directly to the beneficiary or beneficiaries designated by the
Owner, in the manner and in the amount or amounts provided in the beneficiary
designation provisions of the Policy. In no event shall the amount payable to
the Corporation hereunder exceed the proceeds of the Policy payable at the death
of Employee. No amount shall he paid from such death benefit to the beneficiary
or beneficiaries designated by the Employee until the full amount due the
Corporation hereunder has been paid. The parties hereto agree that the
beneficiary designation provisions of the Policy shall conform to the provisions
of this Agreement.
6. Termination of Agreement. This Agreement shall terminate, without
notice, upon the occurrence of any of the following events: (i) the Employment
Agreement between Company and Employee dated ____________________, 1996 is
terminated; or (ii) on December 31, 2001.
7. Release of Collateral Assignment.
a. Notwithstanding anything contained herein to the contrary, (i) if
Employee fulfills all the terms and conditions of that certain Employment
Agreement between Employee and Corporation dated as of the ____ day of
____________, 1996 on December 31, 2001 Corporation shall assign all of its
right, title and interest in and to the Policy to the Employee free and
clear of the "Collateral Assignment" and any and all other liens and
encumbrances including the rights of the Corporation to the Corporation
Reimbursement Amount and this Agreement shall terminate, or (ii) if the
employment of Employee is terminated by the Corporation prior to December
31, 2001 but within twelve (12) months from the date of a change in control
of the Corporation, Corporation shall immediately assign all of its right,
title and interest in and to the Policy to the Employee free and clear of
the "Collateral Assignment" and any and all other liens and encumbrances
including the rights of the Corporation to the Corporation's Reimbursement
Amount.
b. In the event that the Employment Agreement is terminated prior to
December 31, 2001 for any reason whatsoever or the employment of Employee
by the Corporation has terminated prior to December 31, 2001, for any
reason whatsoever, other than Employee being terminated within 12 months
after a change in control of Corporation, Employee has the option to (i)
purchase the Policy from Corporation for the Corporation Reimbursement
Amount, or (ii) assign all of Employee's right, title and interest in and
to the Policy free and clear of all liens and encumbrances other
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than the Collateral Assignment to the Corporation and if the cash surrender
value of the Policy is less than the insurance premiums paid by the
Corporation, pay to the Corporation the difference between the insurance
policy premiums paid by the Corporation and the policy's cash surrender
value.
8. Disposition of Policy on Termination of Agreement.
a. Upon an event referred to in paragraph 7a.(i) or (ii) hereof, the
Corporation shall release any and all claims it has on the policy including
the Collateral Assignment and the right to obtain reimbursement of the
Corporation Reimbursement Amount and assign all of its right, title and
interest in the Policy to the Employee.
b. For events referred to in paragraph 7b.(i) hereof, upon the payment
to the Corporation by the Employee of the Corporation Reimbursement Amount,
Corporation shall release any and all claims it has on the policy including
the Collateral Assignment and the right to obtain reimbursement of the
Corporation Reimbursement Amount and assign all of its right, title and
interest in the Policy to the Employee.
c. For events described in paragraph 7b.(ii) hereof, the Employee shall
execute any and all documents required by the Insurer to transfer the
interest of the Employee and the Policy to the Corporation. Thereafter
neither the Employee nor his respective assigns and beneficiaries have any
further interest in and to the Policy, either under the terms thereof or
under the terms of this Agreement.
9. Insurance Company 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 and of the Collateral Assignment. 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 Owner and filed with
the Insurer in connection herewith.
10. Claims Procedure.
a. The Corporation shall have authority to control and manage the
operation and administration of this Agreement.
b. The Corporation shall make all determinations concerning rights to
benefits under this Agreement. Any decision by the Corporation denying a
claim by the Employee or any beneficiary or beneficiaries for benefits
under this Agreement shall be stated in writing and delivered or mailed to
the Employee or such beneficiary.
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Such decision shall set forth the specific reasons for the denial, written
to the best of the Corporation's ability in a manner that may be understood
without legal or actuarial counsel. In addition, the Corporation shall
afford a reasonable opportunity to the Employee or such beneficiary for a
full and fair review of the decision denying such claim.
c. Corporation shall be liable to Employee or any beneficiary for any
breaches under the provisions of this paragraph 10 only in the event of
gross negligence or intentional misconduct.
11. Amendment of Agreement. 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. Benefits, etc. This Agreement shall be binding upon and inure to the
benefit of the Corporation and its successors and assigns, and the Employee, his
assigns and beneficiaries.
13. 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 sane. 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
Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, as of the date and year first above written, which shall be the
effective date hereof.
"Corporation"
BUCA, INC., a Minnesota corporation
By /s/ Peter J. Mihajlov
------------------------------------
Its Treasurer
--------------------------
"Employee"
By /s/ Joseph P. Micatrotto
------------------------------------
Upon the expiration of this Agreement in December 2001, the parties orally
agreed to extend the term of the Agreement for as long as Mr. Micatrotto remains
as an employee of the Corporation.
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EXHIBIT A
to
Split Dollar Insurance Agreement
(Dated _______________)
Insurer: New England Variable Life Insurance Company
Insured: Joseph P. Micatrotto
Policy Number: 7006493
Face Amount: $1,000,000
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