Exhibit 10.23
SPLIT DOLLAR AGREEMENT
ALLMERICA LIFE INSURANCE
POLICY NO. V062874700
AGREEMENT made as of this 24 day of February, 1999, by and between
▇▇▇▇ ▇▇▇▇▇ (the "Employee"), and DM Management Company, a Delaware
corporation (the "Employer").
WHEREAS, the Employee wishes to establish a life insurance program for
the benefit and protection of his family under Policy No. V062874700 (the
"Policy") issued by Allmerica Financial Life Insurance and Annuity Company, of
Worcester, Massachusetts (the "Insurer"); and
WHEREAS, the Employer wishes to help the Employee provide such
insurance for the benefit and protection of his family by the payment of the
premiums due on the Policy in accordance with Article 2 hereof; and
WHEREAS, the Employee will be the sole owner of the Policy, and will
assign the Policy to the Employer for the purpose of providing security for the
repayment of the amounts which the Employer will contribute toward payment of
the premium due or to become due on the Policy pursuant to an agreement of even
date to be executed by the parties hereto (the "Collateral Assignment"); and
WHEREAS, it is the desire of the parties to define the extent of the
Employer's interest in the cash surrender value and death proceeds of the
Policy;
NOW THEREFORE, in consideration of the mutual promises contained
herein, it is agreed between the parties hereto as follows:
ARTICLE 1: OWNERSHIP OF POLICY
The Policy is the exclusive property of the Employee, who may exercise
all rights of ownership with respect to his interest therein, subject to the
security interest of the Employer as expressed in this Agreement and the
Collateral Assignment and to any death benefit which may become due to the
Employer.
ARTICLE 2: PAYMENT OF PREMIUMS
A. For the first seven (7) years the Policy is in force, or until this
Agreement is earlier terminated as provided in Article 8, the Employer shall be
responsible for the payment of (i) the scheduled premium, or (ii) such lesser
amount as the Insurer advises is consistent with the insurance features of the
Policy. In addition, after the expiration of said seven-year period and while
this Agreement is still in effect, the Employer may make such additional
payments as the Insurer advises is consistent with maintaining the intended
value of the Policy but only if such greater amount or
additional payments are approved by the Compensation Committee of the Employer's
Board of Directors.
B. The Employee understands that he will recognize taxable income in
each year with respect to the life insurance protection afforded to the Employee
in accordance with Internal Revenue Service rulings and regulations.
C. The Employer shall, before the end of any grace period provided in
the Policy for each premium payment, remit the annual premiums as stated in the
Policy until this Agreement is terminated as provided in Article 8. If
requested, the Employer shall give proof to the Employee of the timely payment
of each premium.
ARTICLE 3: COLLATERAL ASSIGNMENT
To secure the repayment to the Employer of an amount equal to the
aggregate amount of its premium payments under the Policy to the extent provided
in Article 6, the Employee has contemporaneously with the execution of this
Agreement assigned the Policy to the Employer as collateral, by means of the
form of Collateral Assignment attached to this Agreement as Schedule 1. The
Collateral Assignment shall not be altered, terminated or amended by Employee
without the express written consent of the Employer. The parties agree to take
all action necessary to cause such assignment to conform to the provisions of
this Agreement.
ARTICLE 4: RIGHTS IN POLICY
A. The Employer shall have no right to borrow against the Policy.
B. The Employee, in recognition of the defined contribution provisions
of this Agreement and the variable nature of the death benefits, shall have the
right to allocate the aggregate account value to particular investment vehicles,
subject to a right of the Employer to disapprove a particular investment vehicle
which it deems inappropriate.
C. The Employee shall have the right to exchange the Policy for such
other policies and/or insurers that he deems appropriate based upon the
investment performance or financial condition of the Insurer, subject to the
approval of the Employer, which approval shall not unreasonably be denied.
Action by the Employee or the Employer to change the Policy and/or insurer
pursuant to this paragraph shall not otherwise alter the rights and
responsibilities of the Employer and the Employee as set forth in this
Agreement.
D. The Employer shall have no responsibility for a shortfall in the
projected total return on the paid-in premiums available to provide the death
benefit.
E. The Employer shall not take any action that might endanger the
interest of the Employee in the Policy. The Employee shall not take any action
that might endanger the interest of the Employer in the Policy.
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ARTICLE 5: EMPLOYEE'S RIGHTS IN POLICY
The Employee retains all other rights in the Policy not specifically
assigned to the Employer including, but not limited to, the following rights:
A. The right to surrender the Policy as set forth in Paragraph D of the
Collateral Assignment.
B. The right to change the beneficiary of the Policy, to the extent of
his interest.
C. The right to select optional methods of settlement with regard to
the death benefit provided in PART TWO of Article 7.
D. All other rights contained in the Policy, to the extent the exercise
of such rights does not adversely affect the Employer's interest in the Policy.
ARTICLE 6: PAYMENT OF CASH SURRENDER VALUE
A. Except as set forth in this Article 6, Section B, in the event this
Agreement is terminated pursuant to Section A or B of Article 8, the Employer
shall have the unqualified right to receive from the Insurer a sum which is
equal to the lesser of (a) the then cash surrender value as defined in the
Policy or (b) the aggregate unreimbursed amount of premium payments with respect
to the Policy for which the Employer was responsible pursuant to Article 2,
Section A (the "Premium Reimbursement"). This amount shall be established in a
written statement to the Insurer by the Employer, and the Insurer shall have the
right, without liability to the Employee or his beneficiary or beneficiaries of
the Policy, to rely exclusively upon such statement. The Employer shall, upon
receiving such sum, release the Collateral Assignment of the Policy.
B. In the event that this Agreement is terminated pursuant to Section B
of Article 8 after the occurrence of a "Terminating Event" (as defined in
Section C of this Article 6), the Employer shall not be entitled to receive the
Premium Reimbursement pursuant to Section A of Article 6.
C. For purposes of this Article 6, a "Terminating Event" shall mean any
of the following if it occurs within two years of a "Change in Control" (as
defined in Section E of this Article 6):
(i) termination by the Employer of the Employee's employment
with the Employer for any reason other than (a) the Employee's death or
disability, or (b) for "Cause" (as such term is defined in Section D of this
Article 6), or
(ii) Employee's resignation as an employee of the Employer,
other than for reasons of disability, following a significant reduction in the
nature or scope of the Employee's duties, responsibilities, authority and powers
from the duties, responsibilities, authority and powers exercised by the
Employee immediately prior to the Change in Control or a reduction in the
Employee's annual base salary as in effect on the date of the Change in Control,
except for across-the-board salary reductions similarly affecting all management
personnel of the Employer (or the
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surviving entity, in the case of a merger or acquisition in which the Employer
is not the surviving entity).
D. For purposes of Section C of this Article 6, "Cause" shall mean:
(i) deliberate dishonesty with respect to the Employer or any
subsidiary or affiliate thereof;
(ii) conviction of a crime involving moral turpitude; or
(iii) gross and willful failure to perform a substantial
portion of the Employee's duties and responsibilities as an officer of the
Employer, which failure continues for more than thirty days after written notice
given to the Employee pursuant to a two-thirds vote of all of the members of the
Board of Directors of the Employer then in office, such vote to set forth in
reasonable detail the nature of such failure.
E. For the purposes of this Article 6, "Change in Control" shall mean
the occurrence of any one or more of the following events:
(i) if there is a merger or consolidation of the Employer with
any other entity and the voting securities of the Employer outstanding
immediately prior to such merger or consolidation do not continue to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than fifty percent (50%) of the combined voting power
of the voting securities of the Employer or such surviving entity immediately
after such merger or consolidation, or
(ii) when any person or entity or group of persons or entities
either related or acting in concert becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Securities Exchange At of 1934, as amended) of
securities of the Employer representing more than fifty percent (50%) of the
total number of votes that may be cast for the election of directors of the
Employer (any such person or entity or group of persons or entities being
referred to, collectively in the case of any such group, as an "Acquiring
Person"), or
(iii) if the Employer sells all or substantially all of its
assets to another entity, other than in a transaction in which the voting
securities of the Employer outstanding immediately prior to such transaction
continue to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than fifty percent (50%) of
the combined voting power of the voting securities of the Employer or such
surviving entity immediately after such transaction, or
(iv) during any period of two consecutive years (not including
any period prior to the execution of this Agreement), individuals who are
Continuing Directors (as hereinafter defined) cease for any reason to constitute
at least a majority of the Board of Directors of the Employer. For this purpose,
a "Continuing Director" shall mean (a) an individual who was a director of the
Employer at the beginning of such period or (b) any new director (other than a
director designated
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by an Acquiring Person) whose election by the Board or nomination for election
by the Board, a committee thereof or the Employer's stockholders was approved by
a vote of a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved; or
(v) one or more Acquiring Persons has succeeded, as the result
of or in response to actual or threatened election contests, whether by
settlement or otherwise, in having elected to the Board of Directors of the
Employer, whether at one time or on a cumulative basis, a sufficient number of
its nominees to constitute (a) more than thirty percent (30%) of the members of
the Employer's Board of Directors, rounded down to the nearest whole number, if
the number of directors on the Employer's Board is eight or less, or (b) more
than forty percent (40%) of the members of the Employer's Board, rounded down to
the nearest whole number, if the number of directors on the Employer's Board is
nine or more.
ARTICLE 7: PAYMENT OF DEATH BENEFIT
In the event of the death of the Employee while the Policy and this
Agreement are in force, the net proceeds of the Policy shall be divided into two
parts and paid as follows:
PART ONE: To the Employer, a sum equal to the aggregate
unreimbursed amount of premium payments for which the Employer
was responsible pursuant to Section A of Article 2, unless
Section B of Article 6 applies.
PART TWO: To the designated beneficiaries of the Employee,
the remaining proceeds of the Policy.
ARTICLE 8: TERMINATION OF AGREEMENT
This Agreement shall terminate:
A. Upon surrender of the Policy by the Employee, except when the Policy
is surrendered and a new policy is issued pursuant to an exchange under
Article 4, Section C.
B. Upon the termination of the employment of the Employee for any
reason other than retirement at or after attaining the age of 65.
C. On the death of the Employee.
ARTICLE 9: EXCHANGE OF POLICY
In the event the Employer is required to exchange the Policy under
Article 4, Section C, the Employee shall execute any forms necessary or
appropriate to effect such exchange including, without limitation, the surrender
of the Policy, the transfer of proceeds to the new insurer and the
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execution of a new Split Dollar Agreement and Collateral Assignment. Such
exchange shall qualify under Section 1035 of the Internal Revenue Code or
successor provisions of similar import.
ARTICLE 10: OBLIGATIONS OF INSURER
Any payments made or action taken by the Insurer in accordance with the
provisions of the Policy and the Collateral Assignment shall fully discharge it
from all claims, suits, and demands of all persons whatsoever.
ARTICLE 11: MISCELLANEOUS
A. This Agreement shall be binding upon the parties hereto, their
heirs, legal representative, successors and assigns.
B. This Agreement and the Collateral Assignment embody all agreements
between or among the parties with respect to the Policy, and no change,
alteration, or modification may be made except in writing signed by all parties
hereto.
C. This Agreement shall be governed by, and construed in accordance
with the provisions of, the laws of the Commonwealth of Massachusetts without
regard to its principles of conflicts of laws.
D. Any dispute, controversy or claim with respect to any party's
performance under this Agreement shall be settled by arbitration in accordance
with the laws of The Commonwealth of Massachusetts by a single arbitrator who
shall be selected by the American Arbitration Association in Boston,
Massachusetts. Such arbitration shall be conducted in the City of Boston in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Punitive damages shall not awarded. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
IN WITNESS WHEREOF, the parties hereto have set their hand and seals
effective as of the day and year first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, Employee
Date: February 24, 1999
DM MANAGEMENT COMPANY, Employer
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its Chief Financial Officer
--------------------------------
Date: February 24, 1999
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SCHEDULE 1 TO SPLIT DOLLAR AGREEMENT
ASSIGNMENT OF LIFE INSURANCE POLICY AS COLLATERAL
A. FOR VALUE RECEIVED, the undersigned ▇▇▇▇ ▇▇▇▇▇ (hereinafter the
"Owner") hereby assigns, transfers and sets over to DM Management Company, a
Delaware corporation, its successors and assigns (hereinafter the "Assignee"),
the following specific rights (and only those specific rights) in and to policy
number V062874700, issued by Allmerica Financial Life Insurance and Annuity
Company (hereinafter the "Insurer") and any supplementary contract or contracts
issued in connection therewith (said policy and any such contracts hereinafter
the "Policy"), insuring the life of the Owner, subject to all terms and
conditions of the Policy and to all superior liens, if any, which the Insurer
may have against the Policy. The Owner, by this Assignment, and the Assignee, by
acceptance of the Assignment of the Policy to it hereunder, agree to the terms
and conditions contained in the Policy.
B. This Assignment is made, and the Policy is to be held as collateral
security for, all rights of and obligations owed to the Assignee, now existing
or hereafter arising under and pursuant to a certain Split Dollar Agreement, by
and between the Owner and the Assignee of even date herewith pertaining to the
Policy (hereinafter the "Agreement"). The Owner reserves all rights and powers
in and to the Policy, except those specific, limited rights in the Policy
granted to the Assignee hereby, as security for all rights of and obligations
owed to the Assignee under the Agreement.
C. It is expressly agreed that the Assignee's interest in the Policy
under and by virtue of this Assignment shall be limited to the following
specific rights, and no others: (1) in the case of the death of the Owner, the
right to be paid the amounts due it under PART ONE of Article 7 of the Agreement
by recovering said amounts directly from the Insurer out of the net death
proceeds of the Policy; (2) in the event that Agreement is terminated pursuant
to Article 8, Sections A or B, the right to be paid the amount due it, if any,
under Article 6 of the Agreement. Neither party shall have the right to borrow
against the Policy, except that the Owner may borrow against the Policy after
attaining the age of 65, so long as such borrowing shall not include funds from
the Assignee's interest in the Policy.
D. Notwithstanding this Assignment, the Owner shall specifically retain
all incidents of ownership in and to the Policy, including, but not limited, to:
(1) in accordance with the terms of the Agreement, the right to cancel or
surrender the Policy and to receive, subject to Paragraph C. 2. hereof, the
surrender value thereof at any time provided by the terms of the Policy and at
such other times as the Insurer may allow; (2) the right to designate and change
the Policy beneficiary, with respect to the amount to be paid pursuant to PART
TWO of Article 7 of the Agreement; (3) the right to elect any optional methods
of settlement with regard to the death benefit under PART TWO of Article 7; (4)
the right to borrow against the Policy after the Owner attains age 65, so long
as such borrowing shall not include funds from the Assignee's interest in the
Policy; (5) the right to designate any reallocation of unit values as permitted
by the Policy subject to a right of the Assignee to disapprove a particular
allocation which it deems inappropriate; and (6) all other rights contained
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in the Policy to the extent the exercise of such rights does not adversely
affect the interest of the Assignee; provided, however, that all of the
foregoing rights retained by the Owner in the Policy shall be subject to the
terms and conditions of the Agreement.
E. The Assignee agrees with the Owner as follows: (1) any funds
received by Assignee from the Insurer which are attributable to the portion of
the death benefit allocated to PART TWO of Article 7 of the Agreement shall be
paid by the Assignee to the beneficiaries designated by the Owner; and (2) if
the Policy is in the possession of the Assignee, the Assignee will, upon the
Owner's request, forward the Policy to the Insurer, without unreasonable delay,
for endorsement of any designation or change of beneficiary, any election of
optional mode of settlement, or the exercise of any other right reserved by the
Owner hereunder.
F. Notwithstanding anything in this Assignment to the contrary, the
Insurer shall be under no obligation to monitor the obligation of the Assignee
hereunder to pay to the designated beneficiaries of the Owner any amounts
received from the Insurer under PART TWO of Article 7 of the Agreement after
payment of PART ONE to the Assignee under the Agreement; and the Insurer shall
have no obligation or liability to any person or entity if the Assignee fails to
pay such amounts as required hereunder.
G. The Insurer is hereby authorized to recognize, and is protected in
recognizing, the Assignee's claims to amounts due it hereunder without
investigating the validity of its claim thereto, the reason for any action taken
by the Assignee, the validity or accuracy of the amount of any of the
liabilities of the Owner to the Assignee under the Agreement, the existence of
any default therein, the giving of any notice required therein, or the
application to be made by the Assignee of any amounts to be paid to the
Assignee. A receipt executed solely by the Assignee for any amounts received by
it from the Insurer shall be a full discharge and release of the Insurer from
the obligations released thereby.
H. In furtherance hereof, the Owner appoints the Assignee his
attorney-in-fact for the following purposes:
1. to receive the portion of the death benefit payable to the
Assignee upon the death of the Owner under PART ONE of Article
7 of the Agreement; and
2. to receive, upon termination of the Agreement pursuant to
Article 8, Sections A or B thereof, the amount, if any,
designated in Article 6, Sections A or B of the Agreement, as
the case may be.
This appointment is coupled with an interest in the Assignee and shall
be irrevocable so long as the Agreement remains in force.
I. The Insurer shall not comply with a request made by the Owner for
cancellation or surrender of the Policy without the consent of the Assignee.
Upon receipt of an assented-to request for cancellation or surrender, the
Insurer shall terminate the Policy and this Assignment shall be of
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no further force or effect; provided, however, that the Insurer shall set aside
and deduct from any amounts to be paid to the Owner under the terms of the
Policy in consequence of its cancellation or surrender, the amount due to the
Assignee under the provisions of Article 6 of the Agreement, which amount shall
be paid to the Assignee by the Insurer.
J. In the event of any conflict between the provisions of this
Assignment and the provisions of the Agreement with respect to the Policy or the
Assignee's rights therein, the provisions of the Agreement shall prevail.
K. The Owner declares that no proceedings in bankruptcy are pending
against the Owner and that the Owner's property is not subject to any assignment
for the benefit of creditors of the Owner.
Signed and sealed as of the 24 day of February, 1999.
/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, Owner
Date: February 24, 1999
Accepted and Agreed:
DM Management Company
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Chief Financial Officer
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Date: February 24, 1999
ACKNOWLEDGEMENT OF SIGNATURE OF OWNER
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF Plymouth )ss:
On the 24th day of February, 1999, before me personally came ▇▇▇▇ ▇▇▇▇▇, to
me known to be the individual described in and who executed the assignment
above and acknowledged to me that he executed the same.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
My commission expires: 4/1/05
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▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Notary Public
My Commision Expires April 1, 2005
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ACKNOWLEDGEMENT OF SIGNATURE OF ASSIGNEE
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF Plymouth )ss:
On the 24 day of February, 1999, before me personally came ▇▇▇▇ ▇. ▇▇▇▇▇▇, who
being by me duly sworn, did depose and say that he is the Chief Financial
Officer of DM Management Company, the corporation described in and which
executed the acceptance and agreement of assignment above; and that he signed
his name thereto by the authority granted to his office.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
My commission expires: 4\1\05
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▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Notary Public
My Commision Expires April 1, 2005
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