Exhibit 10.12
SPLIT DOLLAR AGREEMENT
NEW YORK LIFE INSURANCE
POLICY NO. 46 184 235
AGREEMENT made as of this 22nd day of December, 1997, by and between Gordon
R. Cooke of New York, New York (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. 46 184 235 (the "Policy")
issued by New York Life Insurance Company, of New York, New York (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 a portion 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 less the premium
payable by the Employee as described in Article 2, Section B,
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. Whenever the Employer makes a premium payment, the Employee shall be
responsible for the payment of a portion of said premium which is equal to the
value of the reportable economic benefit of the life insurance protection
afforded the Employee, the so-called P.S. 58 rate of a one-year term policy of
insurance on the Employee's life.
C. Provided that the Employer has received from the Employee the Employee's
portion of the premium due, 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 Trust 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 Employer shall have the right to allocate the aggregate account
value to particular investment vehicles.
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.
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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.
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 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
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(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 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
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(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 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 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.
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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 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
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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/ Gordon R. Cooke
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Gordon R. Cooke, Employee
Date: October 1, 1998
DM MANAGEMENT COMPANY, Employer
By /s/ Olga L. Conley
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Its Chief Financial Officer
------------------------------------
Date: October 1, 1998
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Schedule 1 to Split Dollar Agreement
ASSIGNMENT OF LIFE INSURANCE POLICY AS COLLATERAL
A. FOR VALUE RECEIVED, the undersigned Gordon R. Cooke (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 46 184 235, issued by New York Life Insurance 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
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attains age 65; and (5) all other rights contained 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.
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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 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 22nd day of December, 1997.
/s/ Gordon R. Cooke
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Gordon R. Cooke, Owner
Date: October 1, 1998
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Accepted and Agreed:
DM Management Company
By: /s/ Olga L. Conley
--------------------------
Its: Chief Financial Officer
-------------------------
Date: October 1, 1998
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ACKNOWLEDGEMENT OF SIGNATURE OF OWNER
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF ) ss:
On the 1st day of October, 1998, before me personally came Gordon R.
Cooke, 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/ Patricia L. Eppich
-------------------------------------
Notary Public
My commission expires: April 1, 2005
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ACKNOWLEDGEMENT OF SIGNATURE OF ASSIGNEE
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF Plymouth ) ss:
On the 1st day of October, 1998, before me personally came
Gordon R. Cooke, who being by me duly sworn, did depose and say that he is the
President and C.E.O. 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/ Patricia L. Eppich
--------------------------------------
Notary Public
My commission expires: April 1, 2005
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