EXHIBIT 10.13
WARREN FIVE CENTS SAVINGS BANK
SPLIT-DOLLAR AGREEMENT
THIS AGREEMENT is made as of the 1st day of July, 1995 by and between
WARREN FIVE CENTS SAVINGS BANK, a Massachusetts savings bank, (the "Bank"), and
GEORGE W. PHILLIPS, of Gloucester, Massachusetts (the "Executive").
WITNESSETH THAT:
WHEREAS, the Executive is employed by the Bank as its President and Chief
Executive Officer; and
WHEREAS, the Bank is desirous of retaining the services of the Executive
and of assisting the Executive in paying for life insurance on his own life for
the benefit and protection of his family; and
WHEREAS, the Bank has determined that this assistance can be provided under
a split-dollar life insurance arrangement; and
WHEREAS, the Executive has applied for and is the owner of the insurance
policy listed in the attached Schedule A hereto (the "Policy"); and
WHEREAS, the Bank and the Executive agree to make the policy subject to
this Agreement; and
WHEREAS, the Executive has assigned the Policy to the Bank to secure the
repayment of amounts to be advanced by the Bank under this Agreement by an
instrument of assignment of even date herewith (the "Assignment") filed with the
insurance company issuing the Policy (the "Insurer");
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
1. The Policy shall be subject to the terms and conditions of this
Agreement and of the Assignment. The Executive shall be the sole and absolute
owner of the Policy and may exercise all ownership rights granted to the owner
thereof by the terms of the Policy, except as may be otherwise provided herein
or in the Assignment.
2. The premium for the Policy shall be allocated between the Executive and
the Bank as follows: The Executive's portion of the premium shall be equal to
the amount, as determined by the Bank, that would be includible in the
Executive's gross income for federal income tax purposes as a result of the
insurance protection provided under the Policy for the current policy year if
the Bank paid the entire premium. The Bank's portion of the premium shall be the
remainder. The Bank shall pay its share of the premium when due directly to the
Insurer. At the same time, the Bank shall pay the Executive's share of the
premium as agent for the Executive. The Executive's share of the premium, when
paid, shall be charged to the Executive as cash compensation and for all
purposes, including the Assignment, shall be deemed cash compensation and not
Bank paid premium. Notwithstanding the foregoing, the Bank's obligation to pay
premiums hereunder shall terminate, without notice, upon the occurrence of any
of the following:
(a) The later of the eighth anniversary of the Policy and the date
the Policy is fully funded. The Policy shall be considered "fully
funded" when sufficient premium has been paid to create policy
values
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sufficient to permit the Executive (pursuant to Section 4(a)) to
borrow or withdraw $62,400 each year, beginning with the ninth
policy year and ending with the policy year in which the
Executive attains age 95, without reducing the net cash surrender
value of the Policy below the aggregate amount of Bank paid
premium (the "Net Premium"), such determination to be based upon
the Policy's current crediting rate as of the effective date of
this Agreement less 50 basis points.
(b) The bankruptcy, receivership or dissolution of the Bank.
(c) The termination of the Executive's employment by the Bank for
cause.
The Bank's obligation to pay premiums hereunder shall further more be subject to
all applicable limitations imposed by Federal or state banking law, or by any
regulatory authority acting thereunder; provided that if the Bank's payment of
premiums is suspended by virtue of any such limitation, then whenever such
limitation shall cease to apply the Bank shall, to the extent permitted by law
and unless its obligations have otherwise terminated pursuant to (b) or (c)
above, pay such amounts and take such other actions as may be necessary to
replace and restore to the Executive the benefits contemplated in this
Agreement.
3. The Assignment shall not be terminated, altered or amended by the
Executive without the express written consent of the Bank. The parties hereto
agree to
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take reasonable action to cause such Assignment to conform to the provisions of
this Agreement.
4. (a) Except as otherwise provided herein, the Executive shall not sell,
assign, transfer, borrow against, withdraw from, surrender or cancel the Policy,
or change the beneficiary designation provision thereof, without the express
written consent of the Bank. Consent to change the beneficiary designation shall
not be unreasonably withheld. Notwithstanding the foregoing, in each policy year
beginning with the ninth policy year the Executive may, without such approval,
borrow or withdraw cash value of the Policy in amounts up to $62,400, provided
that no such borrowing or withdrawal shall cause the net cash surrender value of
the Policy to fall below the Net Premium.
(b) The Bank shall not borrow against the Policy without the express
written consent of the Executive.
5. (a) Upon the death of the Executive, the Bank shall promptly take all
action necessary to obtain its share of the death benefit provided under the
Policy (the "Death Benefit").
(b) The Bank shall have the unqualified right to receive a portion of
the Death Benefit determined as follows: If the Executive's wife, Joann H.
Phillips, shall survive the Executive by at least thirty (30) days, then the
Bank's portion of the Death Benefit shall be equal to the total Death Benefit
minus the greater of (i) the amount shown on the attached Schedule B
corresponding to the calendar year of the Executive's death or (ii) the amount
determined by multiplying (x) the difference
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between the cash surrender value of the Policy and the Net Premium by (y) the
percentage shown on the attached Schedule C corresponding to the Executive's
attained age as of the beginning of the policy year. In all other cases, the
Bank's portion of the Death Benefit shall be equal to the total Death Benefit
minus the amount specified in part (ii) of the preceding sentence. The balance
of the Death Benefit, if any, shall be paid directly by the Insurer to the
beneficiary or beneficiaries and in the manner designated by the Executive. No
amount shall be paid from the Death Benefit to the beneficiary or beneficiaries
designated by the Executive until the Bank or Insurer acknowledges in writing
that the full amount due to the Bank hereunder has been paid. The parties hereto
agree that the beneficiary designation provision of the Policy shall conform to
the provisions hereof.
6. This Agreement shall terminate upon the Executive's death and the
payment of proceeds pursuant to Section 5 of this Agreement.
7. If premiums become due other than those required to be paid pursuant to
Section 2 of this Agreement and neither party hereto continues to keep the
Policy in force by timely payment of such premiums, the parties hereto shall act
promptly to surrender the Policy and obtain its net cash surrender value. Upon
such surrender, or lapse of the Policy, the Bank shall be repaid an amount equal
to the lesser of the Net Premium and the net cash surrender value of the Policy,
and this Agreement shall thereupon terminate.
8. Neither party hereto shall take any action that might endanger the
interest of the other party hereto in the Policy.
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9. The Bank shall indemnify the Executive for the amount of any income
taxes and related penalties and interest attributable to any amount that is
determined by the Internal Revenue Service to be includible in the Executive's
gross income for federal income tax purposes as a result of the life insurance
protection provided under the Policy for any period beginning after the end of
the policy year in which the Bank's obligation to pay premium under Section 2
terminates.
10. This Agreement, together with the Assignment, constitutes the entire
agreement between the parties regarding the subject matter hereof. The parties
hereto agree that this Agreement shall take precedence over any contrary
provisions of the Assignment. The Bank agrees not to exercise any right
possessed by it under the Assignment except in conformity with this Agreement.
11. This Agreement may not be amended, altered or modified except by a
written instrument signed by both of the parties hereto and may not be otherwise
terminated except as provided herein.
12. This Agreement shall be binding upon and inure to the benefit of the
Bank and its successors and assigns and the Executive and his successors,
assignees, heirs, executors, administrators and beneficiaries.
13. This Agreement, and the rights of the parties hereunder, shall be
governed by and construed in accordance with the laws of Massachusetts, except
to the extent preempted by federal law.
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IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed by
its officer thereunto duly authorized and the Executive has hereunto set his
hand and seal, all as of the day and year first above written.
ATTEST: WARREN FIVE CENTS SAVINGS BANK
/s/ Susan G. Ouellette By: /s/ Stephen G. Kasnet
- ------------------------------------ ------------------------------------
Clerk Title
/s/ Paul M. Peduto /s/ George W. Phillips
- ------------------------------------ ------------------------------------
Witness George W. Phillips
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SCHEDULE A
Insurance Carrier Policy No. Face Amount
- ----------------- --------- -----------
Security Life of Denver 1541915 $1,820,000
Insurance Company
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SCHEDULE B
Year of Executive's Death Amount
- ------------------------- ------
1995 $836,724
1996 828,527
1997 819,756
1998 810,371
1999 800,329
2000 789,584
2001 778,086
2002 778,086
2003 765,784
2004 752,621
2005 738,537
2006 723,466
2007 707,341
2008 690,087
2009 690,087
2010 671,625
2011 651,871
2012 630,734
2013 630,734
2014 608,117
2015 583,917
2016 558,024
2017 558,024
2018 530,317
2019 500,671
2020 500,671
2021 468,950
2022 435,009
2023 435,009
2024 398,692
2025 398,692
2026 359,832
2027 359,832
2028 318,252
2029 318,252
2030 318,252
2031 273,762
2032 273,762
2033 273,762
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SCHEDULE C
Executive's Age
At Start of Policy Year Applicable Percentage
----------------------- ---------------------
56 146
57 142
58 138
59 134
60 130
61 128
62 126
63 124
64 122
65 120
66 119
67 118
68 117
69 116
70 115
71 113
72 111
73 109
74 107
75-90 105
91 104
92 103
93 102
94 101
95 or more 100
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ASSIGNMENT OF LIFE INSURANCE POLICY
A. FOR VALUE RECEIVED, the undersigned (hereinafter the "Policy Owner')
does hereby assign, transfer and set over to Warren Five Cents Savings Bank, a
Massachusetts savings bank, and its successors and assigns (hereinafter the
"Assignee"), the following specific rights (and only those specific rights) in
and to policy number 1541915, issued by Security Life of Denver Insurance
Company (hereinafter the 'Insurer") and any supplementary contract or contracts
issued in connection therewith (said policy and any such contracts hereinafter
sometimes referred to as the "Policy"), insuring the life of George W. Phillips
(hereinafter the "Insured), subject to all the terms and conditions of the
Policy and to all superior liens, if any, which the Insurer may have against the
Policy. The Policy 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 herein.
B. This Assignment is made, and the rights in the Policy assigned
hereunder are to be held, as collateral security for all liabilities of the
Policy Owner to the Assignee, now existing or hereafter arising, under and
pursuant to a certain Split-Dollar Agreement by and between the Policy Owner and
the Assignee of even date herewith (hereinafter the "Agreement") and for other
purposes provided in the Agreement. The Policy Owner reserves all rights and
powers in and to the Policy, except those specific, limited rights granted in
the Policy to the Assignee hereby.
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) the right to be paid the amount due it under
the Agreement by recovering said amount directly from the Insurer out of the net
death proceeds of the Policy upon the death of the Insured; (2) the right to be
paid the amount due it under the Agreement by recovering said amount from the
Insurer out of the net cash surrender proceeds of the Policy upon the surrender,
cancellation or lapse of the Policy; (3) the right to approve or disapprove any
sale, assignment, transfer, surrender or cancellation of the Policy, or change
in the beneficiary designation provision thereof, by the Policy Owner; (4) the
right to approve or disapprove any borrowing against or withdrawal from the
Policy by the Policy Owner, subject to paragraph D hereof and; (5) the right to
borrow against or withdraw from the Policy with the express written consent of
the Policy Owner. The Assignee shall have a security interest in the Policy and
in the cash proceeds thereof. The Assignee shall have no other rights or powers
in and to the Policy as a result of the assignment to it hereunder, and
specifically shall not have the right to cancel or surrender the Policy.
D. Neither the Policy Owner nor the Assignee shall have the right,
without the express written consent of the other, to withdraw from or borrow
against the Policy, except that beginning on the eighth anniversary of the
Policy, the Policy Owner may withdraw or borrow amounts without the consent of
the Assignee, subject to the following limitations: (1) the sum of the aggregate
amounts withdrawn and the net amounts borrowed by the Policy Owner during any
policy year shall not exceed $62,400; and (2) such withdrawals and
borrowings shall not cause the net surrender value of the Policy to fall below
the amount of the "Net Premium," as defined in the Agreement, reduced by any
outstanding loan balance of the Assignee. The Assignee shall, in advance of the
eighth policy anniversary and from time to time, provide the Insurer with
written notice of the amount of the Net Premium, and the Insurer shall be fully
protected in relying on the most recent notice so provided without further
investigation.
E. Except as limited by paragraphs C and D hereof, the Policy Owner shall
retain all incidents of ownership in and to the Policy, including, but not
limited to: (1) the sole right to cancel or surrender the Policy and receive the
net surrender value thereof, net of the Assignee's interest, at any time
provided by the terms of the Policy and at such other times as the Insurer may
allow; (2) the sole right to collect and receive all distributions or shares of
surplus, dividend deposits or additions to the Policy now or hereafter made or
apportioned thereto, and to exercise any and all options contained in the Policy
with respect thereto; (3) the sole right to exercise all non-forfeiture rights
permitted by the terms of the Policy or allowed by the Insurer and to receive
all benefits and advantages derived therefrom; (4) the sole right to designate
and change the beneficiary of the Policy (for any amount in excess of the amount
due the Assignee under the Agreement); (5) the sole right to elect any optional
mode of settlement permitted by the Policy or allowed by the Insurer (for any
amount in excess of the amount due the Assignee under the Agreement); (6) the
right to borrow against, obtain loans or advances on, or make withdrawals from
the Policy; (7) the sole right to assign the Policy (subject to this Assignment
and the Agreement); and (8) the right to collect directly from the Insurer that
portion of the net proceeds of the Policy in excess of those proceeds payable to
the Assignee under the Agreement; provided, however, that all of the foregoing
rights retained by the Policy Owner in the Policy shall be subject to the terms
and conditions of the Agreement.
F. The Assignee agrees with the Policy Owner as follows: (1) any balance
of any amount received by the Assignee hereunder from the Insurer remaining
after payment of the amounts due to the Assignee under the Agreement shall be
paid by the Assignee to the persons entitled thereto under the terms of the
Policy had this Assignment not been executed; and (2) if the Policy is in the
possession of the Assignee, the Assignee, upon request, will forward the Policy
to the Insurer, without unreasonable delay, for endorsement of any designation
or change of beneficiary approved by the Assignee, any election of optional mode
of settlement, or the exercise of any other right reserved by the Policy Owner
hereunder.
G. 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 persons entitled thereto any amounts received from the
Insurer remaining after payment of the then existing liabilities of the Policy
Owner 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.
H. 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
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amount due to the Assignee under the Agreement, the existence of any default
therein, the giving of any notice required herein, or the application to be made
by the Assignee of any amounts to be paid to the Assignee. The sole receipt of
the Assignee for any amounts received by it shall be a full discharge and
release therefore to the Insurer.
I. Except as may be otherwise provided in the Agreement, the Assignee
shall be under no obligation to pay any premium on the Policy or the principal
of or interest on any loans or advances on the Policy, whether or not obtained
by the Assignee, or any other charges on the Policy.
J. The Insurer shall be fully protected in recognizing the request made
by the Policy Owner for cancellation or surrender of the Policy only with the
written consent of the Assignee, and upon such cancellation or surrender, the
Policy shall be terminated and be of no further force or effect.
K. Upon the full payment of the liabilities of the Policy Owner to the
Assignee pursuant to the Agreement and all other amounts the Assignee may be
entitled to receive there under, the Assignee shall promptly release this
Assignment and thereby reassign to the Policy Owner all specific rights in the
Policy included herein.
L. The Assignee may take or release other security, may grant extensions,
renewals or indulgences with respect to the obligations of the Policy Owner to
the Assignee under the Agreement, or may apply the proceeds of the Policy hereby
assigned or any amount received on account of the Policy by the exercise of any
right permitted under this assignment, without resorting to or regard to other
security for such obligations, if any.
M. 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.
N. The Policy Owner declares that no proceedings in bankruptcy are
pending against the Policy Owner, and that the Policy Owner's property is not
subject to any assignment for the benefit of creditors of the Policy Owner.
Signed and settled as of this 1st day of July, 1995.
POLICY OWNER:
GEORGE W. PHILLIPS
/s/ George W. Philips
----------------------------------
George W. Philips
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