Attached files
| file | filename |
|---|---|
| EX-32.2 - EX-32.2 - IMAX CORP | d415485dex322.htm |
| EX-32.1 - EX-32.1 - IMAX CORP | d415485dex321.htm |
| EX-31.2 - EX-31.2 - IMAX CORP | d415485dex312.htm |
| EX-31.1 - EX-31.1 - IMAX CORP | d415485dex311.htm |
| EX-10.43 - EX-10.43 - IMAX CORP | d415485dex1043.htm |
| 10-Q - FORM 10-Q - IMAX CORP | d415485d10q.htm |
IMAX CORPORATION
Exhibit 10.44
SPLIT-DOLLAR AGREEMENT
This SPLIT-DOLLAR AGREEMENT (this “Agreement”) is made and entered into effective as of the 1st day of July 2017, by and between IMAX Corporation, a corporation organized under the laws of Canada and located in New York, New York (the “Company”), and GREG FOSTER, an individual (the “Insured”).
R E C I T A L S:
A. The Insured is currently an officer of the Company and provides valuable service to the Company.
B. The Company desires to provide the Insured with certain death benefits under a life insurance policy purchased by the Company on the life of the Insured.
NOW, THEREFORE, the parties hereto, for and in consideration of mutual promises contained herein and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, do hereby agree as follows:
1. Identification of Policy. This Agreement pertains to the life insurance policy or policies (the “Policy”) listed on Exhibit C, attached and made a part hereto.
2. Ownership of Policy. The Company shall own all of the right, title and interest in the Policy and shall control all rights of ownership with respect thereto. The Company, in its sole discretion, may exercise its right to borrow against or withdraw the cash value of the Policy. In the event coverage under the Policy is increased, such increased coverage shall be subject to all of the rights, duties and obligations set forth in this Agreement.
3. Designation of Beneficiary. The Insured may designate one or more beneficiaries (on the Beneficiary Designation Form attached hereto as Exhibit B) to receive the vested portion of the Death Benefit, as defined on Exhibit A attached hereto, under the Policy payable pursuant hereto upon the death of the Insured subject to any right, title or interest the Company may have in such proceeds as provided herein. In the event the Insured fails to designate a beneficiary, any benefits payable pursuant hereto shall be paid to the estate of the Insured. The Insured agrees to notify the Company of any beneficiary designation that he makes directly with the insurer identified on Exhibit C or any successor insurer or substitute or replacement insurer (the “Insurer”) and to update as necessary the Beneficiary Designation Form attached hereto as Exhibit B to ensure that it is consistent with any such other beneficiary designation; in the event of any inconsistency, the beneficiary designation made directly with the Insurer will control.
4. Maintenance of Policy. It is the Company’s intention to maintain a life insurance policy for the benefit of the Insured. Accordingly, the Company shall be responsible for making any required premium payments and to take all other actions within the Company’s reasonable
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control in order to keep the Policy in full force and effect; provided, however, that the Company may replace the Policy with a comparable policy or policies so long as the Insured’s beneficiaries will be entitled to receive an amount of death proceeds under Section 7 substantially equal to those that the beneficiaries would be entitled to if the original Policy were to remain in effect. If any such replacement is made, all references herein to the “Policy” shall thereafter be references to such replacement policy or policies. If the Policy contains any premium waiver provision, any such waived premiums shall be considered for the purposes of this Agreement as having been paid by the Company. The Company shall be under no obligation to set aside, earmark or otherwise segregate any funds with which to pay its obligations under this Agreement, including, but not limited to, payment of Policy premiums.
| (a) | Notwithstanding anything in this Agreement to the contrary, in the event that for any reason: |
| (i) | the Insurer denies a claim under the Policy; |
| (ii) | the Insurer or any successor Insurer or substitute or replacement Insurer fails to pay a claim under the Policy, including but not limited to the bankruptcy, insolvency or other similar proceeding being instituted by or against the Insurer or any successor Insurer or substitute or replacement Insurer; or |
| (iii) | no death benefits have been paid under the Policy to the Company, the Insured or the Insured’s estate or beneficiaries, |
then no amounts shall be due hereunder by the Company to the Insured or the Insured’s estate or beneficiaries.
The Insured and the Insured’s estate and beneficiaries hereby and will in the future, hold the Company harmless from any payment obligation hereunder to the extent an event described in subsections (i), (ii) or (iii) occurs or a claim under the Policy has not been paid for any reason by the Insurer or death benefits have not been paid under the Policy to the Company, the Insured or the Insured’s estate or beneficiaries by the Insurer.
| (b) | It is the intent of the parties that this Agreement provides for a death benefit only and provides none of the Insured or the Insured’s estate or beneficiaries with any right to any policy cash value or to any retirement or deferred compensation benefits or rights. |
| (c) | It is the intent of the parties that any of the Insured’s rights to payment hereunder shall be funded solely from the Policy proceeds and the Company shall have no liability or obligation to the Insured or the Insured’s estate or beneficiaries in the event of non-payment of Policy death proceeds or default of the Insurer for any reason. |
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5. Reporting Requirements. The Company will report on an annual basis to the Insured the economic benefit of the death benefits under the Policy payable to the Insured’s beneficiary attributable to this Agreement on IRS Form W-2, or if applicable Form 1099, so that the Insured can properly include said amount in his or her taxable income. The Insured agrees to accurately report and pay all applicable taxes on such amount as income reportable hereunder to the Insured. The Insured acknowledges and understands that no “group term life” or similar income tax exclusion applies to benefits provided hereunder.
6. Vesting. The Insured will vest in the Death Benefit on the following schedule, subject to his continued employment with the Company:
| (a) | 25% vested on July 2, 2019; |
| (b) | 50% vested on July 2, 2022; |
| (c) | 75% vested on July 2, 2025; and |
| (d) | 100% vested on July 2, 2027; |
provided, however, that if the Insured incurs a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), for any reason other than (i) the Company’s termination of his employment for Cause (as defined in the employment agreement, dated as of September 1, 2016 between the Company and the Insured (the “Employment Agreement”)), (ii) the Insured’s resignation without Good Reason (as defined in the Employment Agreement) or (iii) the Insured’s declining an offer by the Company to renew the Insured’s employment following the expiration of the term of the Employment Agreement on terms that are not materially less favorable than those set forth in the Employment Agreement, the Insured will be considered 100% vested in the Death Benefit as of the date of his separation from service. For the avoidance of doubt, it is noted that if the Insured dies while employed by the Company, the Death Benefit will be considered 100% vested.
7. Policy Proceeds. Subject to Section 9, upon the death of the Insured, the death proceeds of the Policy shall be divided in the following manner:
| (a) | The Insured’s beneficiary(ies) designated in accordance with Section 3 shall be entitled to an amount equal to the vested portion of the Death Benefit as defined in Exhibit A attached to and made a part hereof. |
| (b) | The Company shall be entitled to any death proceeds payable under the Policy remaining after payment to the Insured’s beneficiary(ies) under Section 7(a) above. |
| (c) | The Company and the Insured shall share in any interest due on the death proceeds of the Policy on a pro rata basis based upon the amount of proceeds due each party divided by the total amount of proceeds, excluding any such interest. |
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8. Cash Surrender Value of the Policy. The “Cash Surrender Value of the Policy” shall be equal to the cash value of the Policy at the time of the Insured’s death or upon surrender of the Policy, as applicable, less (i) any policy or premium loans or withdrawals or any other indebtedness secured by the Policy, and any unpaid interest thereon, previously incurred or made by the Company, and (ii) any applicable surrender charges, as determined by the Insurer or agent servicing the Policy.
9. Termination of Agreement.
| (a) | This Agreement shall terminate immediately upon the first to occur of the following: |
| (i) | the distribution of the death benefit proceeds in accordance with Section 7 above; or |
| (ii) | the Insured attains age 66 and thereafter receives the first distribution under the Nonqualified Retirement Plan Agreement between the Company and the Insured dated June 6, 2017. |
| (b) | The Insured acknowledges and agrees that the termination of this Agreement pursuant to subsection (a)(ii) above shall terminate any rights of the Insured’s beneficiary(ies) to receive the Death Benefit or any other proceeds of the Policy, and such termination shall be without any liability of any nature to the Company. |
10. Assignment. The Insured shall not make any assignment of his rights, title or interest in or to the death proceeds of the Policy whatsoever without the prior written consent of the Company (which may be withheld for any reason or no reason in its sole and absolute discretion) and acknowledgment by the Insurer.
11. Administration.
| (a) | This Agreement shall be administered by the Company. |
| (b) | As the administrator, the Company shall have the powers, duties and full discretionary authority to: |
| (i) | Construe and interpret the provisions of this Agreement; |
| (ii) | Adopt, amend or revoke rules and regulations for the administration of this Agreement, provided they are not inconsistent with the provisions of this Agreement; |
| (iii) | Provide appropriate parties with such returns, reports, descriptions and statements as may be required by law, within the times prescribed by law and to make them available to the Insured (or the Insured’s beneficiary) when required by law; |
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| (iv) | Take such other action as may be reasonably required to administer this Agreement in accordance with its terms or as may be required by law; |
| (v) | Withhold applicable taxes and file with the Internal Revenue Service appropriate information returns with respect to any payments and/or benefits provided hereunder; and |
| (vi) | Appoint and retain such persons as may be necessary to carry out its duties as administrator. |
| (c) | The Company shall serve as the “named fiduciary,” as such term is defined in Section 402(a) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), with respect to this Agreement (the “Named Fiduciary”). The Named Fiduciary shall be responsible for the management, control and administration of the Policy’s death proceeds. The Named Fiduciary may, in its reasonable discretion, delegate certain aspects of its management and administrative responsibilities. Upon the death of the Insured, the Named Fiduciary will contact the Insurer in order to complete a claim form and determine what other steps need to be taken. The Insurer will evaluate and make a decision as to payment. If the claim is eligible for payment under the Policy, the Insurer will, if so instructed by the Named Fiduciary, issue a check to the Insured’s beneficiary (or beneficiaries) for a portion of the death proceeds as instructed by the Named Fiduciary and will issue a separate check to the Named Fiduciary for the balance of the death proceeds. If the Insurer determines that a claim is not eligible for payment under the Policy, the Named Fiduciary may, in its sole discretion, contest such claim denial by contacting the Insurer in writing. |
12. Claims Procedures.
| (a) | For purposes of these claims procedures, the Company shall serve as the “Claims Administrator.” |
| (b) | If the Insured or any beneficiary of the Insured should have a claim for benefits hereunder he or she shall file such claim by notifying the Claims Administrator in writing. The Claims Administrator shall make all determinations as to the right of any person or persons to a benefit hereunder. Benefit claims shall be made by the Insured, his beneficiary or beneficiaries or a duly authorized representative thereof (the “claimant). |
| (c) | If the claim is wholly or partially denied, the Claims Administrator shall provide written or electronic notice thereof to the claimant within a reasonable period of time, but not later than ninety (90) days after receipt of the claim. An extension of time for processing the claim for benefits is allowable if special circumstances require an extension, but such an |
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| extension shall not extend beyond one hundred eighty (180) days from the date the claim for benefits is received by the Claims Administrator. Written notice of any extension of time shall be delivered or mailed within ninety (90) days after receipt of the claim and shall include an explanation of the special circumstances requiring the extension and the date by which the Claims Administrator expects to render the final decision. |
| (d) | The notice of adverse benefit determination shall (i) specify the reason for the denial; (ii) reference the provisions of this Agreement on which the denial is based; (iii) describe the additional material or information, if any, necessary for the claimant to receive benefits and explain why such information is necessary; (iv) indicate the steps to be taken by the claimant if a review of the denial is desired, including the time limits applicable thereto; and (v) contain a statement of the claimant’s right to bring a civil action under ERISA in the event of an adverse determination on review. |
| (e) | If a claim is denied and a review is desired, the claimant shall notify the Claims Administrator in writing within sixty (60) days after receipt of written notice of a denial of a claim. In requesting a review, the claimant may submit any written comments, documents, records, and other information relating to the claim, the claimant feels are appropriate. The claimant shall, upon request and free of charge, be provided reasonable access to, and copies of, all documents, records and other information “relevant” to the claimant’s claim for benefits. The Claims Administrator shall review the claim taking into account all comments, documents, records and other information submitted by the claimant, without regard to whether such information was submitted or considered in the initial benefit determination. |
| (f) | The Claims Administrator shall provide the claimant with written or electronic notification of the benefit determination upon review. In the event of an adverse benefit determination on review, the notice thereof shall (i) specify the reason or reasons for the adverse determination; (ii) reference the specific provisions of this Agreement on which the benefit determination is based; (iii) contain a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all do records and other information “relevant” to the claimant’s claim for benefits; and (iv) inform the claimant of the right to bring a civil action under the provisions of ERISA. |
| (g) | For purposes hereof, documents, records and information shall be considered “relevant” to the claimant’s claim if it (i) was relied upon in making the benefit determination, (ii) was submitted, considered, or generated in the course of making the benefit determination, whether or not actually relied upon in making the determination; or (iii) demonstrates compliance with the administrative processes and safeguards of this claims procedure. |
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| (h) | After exhaustion of the claims procedure as provided herein, nothing shall prevent the claimant from pursuing any other legal or equitable remedy otherwise available, including the right to bring a civil action under Section 502(a) of ERISA, if applicable. Notwithstanding the foregoing, no legal action may be commenced or maintained against the Company or the Claims Administrator more than ninety (90) days after the claimant has exhausted the administrative remedies set forth in this Section 12. |
13. Confidentiality. The Insured agrees that the terms and conditions of this Agreement, except as such may be disclosed in financial statements and tax returns, or in connection with estate planning, are and shall forever remain confidential, and the Insured agrees that he shall not reveal the terms and conditions contained in this Agreement at any time to any person or entity, other than his financial and professional advisors, unless required to do so by a court of competent jurisdiction.
14. Other Agreements. The benefits provided for herein for the Insured are supplemental life insurance benefits and shall not be deemed to modify, affect or limit any salary or salary increases, bonuses, profit sharing or any other type of compensation of the Insured in any manner whatsoever. No provision contained in this Agreement shall in any way affect, restrict or limit any existing employment agreement between the Company and the Insured, nor shall any provision or condition contained in this Agreement create specific rights of the Insured or limit the right of the Company to discharge the Insured with or without cause. Except as otherwise provided therein, nothing contained in this Agreement shall affect the right of the Insured to participate in or be covered by or under any qualified or non-qualified pension, profit sharing, group, bonus or other supplemental compensation, retirement or fringe benefit plan constituting any part of the Company’s compensation structure whether now or hereinafter existing.
15. Withholding. Notwithstanding any of the provisions hereof, the Company may withhold from any payment to be made hereunder such amount as it may be required to withhold under any applicable federal, state or other law, and transmit such withheld amounts to the applicable taxing authority.
16. Miscellaneous Provisions.
| (a) | Counterparts. This Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission of an executed counterpart. |
| (b) | Survival. The provisions of Sections 13 and 16 of this Agreement shall survive the termination of this Agreement indefinitely, regardless of the cause of, or reason for, such termination. |
| (c) | Construction. As used in this Agreement, the neuter gender shall include the masculine and the feminine, the masculine and feminine genders shall |
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| be interchangeable among themselves and each with the neuter, the singular numbers shall include the plural, and the plural the singular. The term “person” shall include all persons and entities of every nature whatsoever, including, but not limited to, individuals, corporations, partnerships, governmental entities and associations. The terms “including,” “included,” “such as” and terms of similar import shall not imply the exclusion of other items not specifically enumerated. |
| (d) | Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be held to be invalid, illegal, unenforceable or inconsistent with any present or future law, ruling, rule or regulation of any court, governmental or regulatory authority having jurisdiction over the subject matter of this Agreement, such provision shall be rescinded or modified in accordance with such law, ruling, rule or regulation and the remainder of this Agreement or the application of such provision to the person or circumstances other than those as to which it is held inconsistent shall not be affected thereby and shall be enforced to the greatest extent permitted by law. |
| (e) | Governing Law. This Agreement is made in the State of New York and shall be governed in all respects and construed in accordance with the laws of the State of New York, without regard to its conflicts of law principles, except to the extent superseded by the Federal laws of the United States. |
| (f) | Binding Effect. This Agreement is binding upon the parties, their respective successors, permitted assigns, heirs and legal representatives. Without limiting the foregoing, the terms of this Agreement shall be binding upon the Insured’s estate, administrators, personal representatives and heirs. This Agreement may be assigned by Company to any party to which Company assigns or transfers the Policy. This Agreement has been approved by the Company and the Company agrees to maintain an executed counterpart of this Agreement in a safe place as an official record of the Company. |
| (g) | No Trust. Nothing contained in this Agreement and no action taken pursuant to the provisions of this Agreement shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and the the Insured, the Insured’s designated beneficiary or any other person. |
| (h) | Assignment of Rights. None of the payments provided for by this Agreement shall be subject to seizure for payment of any debts or judgments against the Insured or any beneficiary; nor shall the Insured or any beneficiary have any right to transfer, modify, anticipate or encumber any rights or benefits hereunder; provided, however, that the undistributed portion of any benefit payable hereunder shall at all times be subject to set-off for debts owed by the Insured to Company. |
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| (i) | Entire Agreement. This Agreement, together with its exhibits, which are incorporated herein by reference, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous negotiations, agreements and understandings, whether oral or written, relating to the subject matter hereof. The Insured acknowledges and agrees that the Company’s performance of its obligations under this Agreement will satisfy in full the Company’s obligations under Section 8 of the Nonqualified Retirement Plan Agreement, dated as of June 6, 2017, between the Company and the Insured. |
| (j) | Notice. Any notice to be delivered under this Agreement shall be given in writing and delivered by hand, or by first class, certified or registered mail, postage prepaid, addressed to the Company or the Insured, as applicable, at the address for such party set forth below or such other address designated by notice. |
| Company: | IMAX Corporation | |
| 902 Broadway | ||
| 20th Floor | ||
| New York, NY 10010 | ||
| Attn: Chief Legal Officer | ||
| Insured: | Greg Foster | |
| Address on file with Company | ||
| (k) | Non-waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right. |
| (l) | Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. |
| (m) | Amendment. No amendments or additions to this Agreement shall be binding unless in writing and signed by both parties. No waiver of any provision contained in this Agreement shall be effective unless it is in writing and signed by the party against whom such waiver is asserted. Notwithstanding the foregoing, the Company may amend, modify or terminate this Agreement (and may do so retroactively) without the consent and or approval of the Insured or any beneficiary of the Insured if such amendment, modification or termination is necessary to ensure compliance with Code Section 409A, or in order to avoid the application of any penalties that may be imposed upon the Insured and any beneficiary of the Insured pursuant to the provisions of Code Section 409A. |
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| (n) | Seal. The parties hereto intend this Agreement to have the effect of an agreement executed under the seal of each. |
| (o) | Purpose. The primary purpose of this Agreement is to provide certain death benefits to the Insured as a member of a select group of management or highly compensated employees of the Company. |
| (p) | Compliance with Section 409A of the Code. This Agreement is intended to be exempt from the provisions of Section 409A of the Code and the rules and regulations promulgated thereunder. However, the Company does not warrant to the Insured that all amounts payable under this Agreement will be exempt from, or paid in compliance with, Section 409A. The Insured understands and agrees that he bears the entire risk of any adverse federal, state or local tax consequences and penalty taxes which may result from payment of compensation for his services on a basis contrary to the provisions of Section 409A or comparable provisions of any applicable state or local income tax laws. |
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed effective as of the day and year set forth above.
| IMAX Corporation | ||||||
| Date: July 1, 2017 | By: | /s/ Robert D. Lister | ||||
| Its: | Chief Legal Officer & Chief Business Development Officer | |||||
| By: | /s/ Carrie Lindzon-Jacobs | |||||
| Its: | Chief Human Resources Officer | |||||
| INSURED: | ||||||
| Date: July 1, 2017 | /s/ Greg Foster | |||||
| Greg Foster | ||||||
The following party joins this Agreement as to Sections 4(a), 4(b) and 4(c)
| Foster Family Trust dated June 15th, 2012, Greg Foster and Marci Foster, Trustees | ||||||
| Date: July 1, 2017 | By: | /s/ Greg Foster | ||||
| Its: | Trustee | |||||
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EXHIBIT A
DEATH BENEFIT
Greg Foster
Death Benefit – The “Death Benefit” shall equal $5,500,000.
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