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EXHIBIT 10.13
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FORM OF SPLIT-DOLLAR AGREEMENT
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THIS AGREEMENT made and entered into as of the [Date], by and among
Ekco Group, Inc., a Delaware corporation with principal offices and place of
business in the State of New Hampshire (hereinafter referred to as the
"Employer"), and [Name of Employee], an individual residing in the State of
Illinois (hereinafter referred to as the "Employee").
WHEREAS, the Employee is employed by the Employer; and
WHEREAS, the Employee wishes to provide life insurance protection for
his family in the event of his death, and
WHEREAS, a policy of life insurance insuring his life, which policy is
described in Exhibit A, has been issued by the Guardian Life Insurance Company
(hereinafter referred to as the "Insurer"), and
WHEREAS, this agreement is meant to apply to that policy and to any
other policies which may be purchased and scheduled on Exhibit A with the
Employer's consent (the initial policy and any subsequent policies hereinafter
referred to as the "Policies"), and
WHEREAS, the Employer is willing to pay the initial and subsequent
premiums due on the Policies as an additional employment benefit for the
Employee, on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is the owner of the Policies and, as such,
possesses all incidents of ownership in and to the Policies; and
WHEREAS, the Employer wishes to have the Policies collaterally assigned
to it by the Employee, in order to secure the repayment of the amounts which it
will pay toward the premiums on the Policies and certain other amounts
hereinafter described; and
WHEREAS, the parties intend that by such collateral assignment the
Employer shall receive only the right to such repayments, with the Employee
retaining all other ownership rights in the Policies;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
I. PURCHASE OF POLICIES. The Employee has purchased the Policies from the
Insurer in the total face amount listed on Exhibit A. The parties hereto have
taken all necessary action to cause the Insurer to issue the Policies, and shall
take any further action which may be necessary to cause the Policies to conform
to the provisions of this Agreement. The parties hereto agree that the Policies
shall be subject to the terms and conditions of this Agreement and of the
collateral assignment filed with the Insurer relating to the Policies. All
capitalized words and phrases not otherwise defined herein shall have the same
meaning such words and phrases have in the Policies.
II. OWNERSHIP OF POLICIES.
A. The Employee shall be the sole and absolute owner of the
Policies, and may exercise all ownership rights granted to the owner by the
terms of the Policies, except as may be provided herein.
B. It is the intention of the parties that the Employee shall
retain all rights which the Policies grant to
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the owner thereof; the sole right of the Employer hereunder shall be to be
repaid the amounts which it has paid toward the premiums on the Policies.
Specifically, but without limitation, the Employer shall neither have nor
exercise any right as collateral assignee of the Policies which could in any way
defeat or impair the Employee's right to receive the cash surrender value or the
right of the Employee's beneficiary to receive death proceeds of the Policies in
excess of the amount due the Employer hereunder. All provisions of this
Agreement and of such collateral assignment shall be construed so as to carry
out such intention.
C. PAYMENT OF PREMIUMS. On or before the due date of each
Policy's premium, or within the grace period provided therein, the Employer
shall pay the full amount of the planned periodic premium to the Insurer, and
shall, upon request, promptly furnish the Employee evidence of timely payment of
such premium. Except with the written consent of the Employee, the Employer
shall not pay less than such planned periodic premium, but may, in its
discretion, at any time and from time to time, subject to the acceptance of such
amount by the Insurer, pay more than such planned periodic premium or make other
premium payments on the Policies. Except as otherwise agreed in writing by the
Employee and the Employer, the Employer's obligation to pay premiums due under
the Policies shall cease upon termination of employment or, if Employee is
entitled to salary continuation payments under any contract of employment or
otherwise, upon completion of payments under such contract or continuation
arrangement, with the Employer to pay a pro rata portion of premium for any
portion of the policy year in which the Employee was employed or entitled to
salary continuation. For any period in which premiums are paid by the Insurer
pursuant to a disability waiver feature of the Policies, the Employer shall be
excused from payment and accordingly shall have no right to recover such amounts
under the collateral assignment described herein.
D. COLLATERAL ASSIGNMENT. To secure the repayment to the Employer
of the amount of the premiums on the Policies paid by it hereunder, the Employee
has, contemporaneously herewith, assigned the Policies to the Employer as
collateral, under the form used by the Insurer for such assignments, which
collateral assignment specifically provides that the sole right of the Employer
thereunder is to be repaid the amount of the premiums on the Policies paid by
it. Any such repayment of premiums on the Policies paid by the Employer shall be
made from and shall be limited to the cash surrender value of the Policies
(including cash surrender value of any paid-up additions) if this Agreement is
terminated or if the Employee surrenders or cancels the Policies. If the
Employee should die while the Policies and Agreement remain in force, such
repayment to the Employer shall be made from the death proceeds of the Policies.
In no event shall the Employer have any right to borrow against or make
withdrawals from the Policies, to surrender or cancel the Policies, nor to take
any other action which would impair or defeat the rights of the Employee in and
to the Policies. The collateral assignment of the Policies to the Employer
hereunder shall not be terminated, altered or amended by the Employee while this
Agreement is in effect. The parties hereto agree to take all action necessary to
cause such collateral assignment to conform to the provisions of this Agreement.
E. APPLICATION OF DIVIDENDS. While this agreement is in force,
dividends under any policy shall be used to purchase paid-up additions and shall
not be applied to the payment of premiums or for any other dividend option
unless the parties so agree by amending this agreement and the Employee
subsequently amends the policy.
F. TAX STATEMENT. The Employer shall annually furnish the
Employee a statement of the amount of income reportable by the Employee for
federal and state income tax purposes, if any, as a result of the insurance
protection provided the Employee.
III. LIMITATIONS ON EMPLOYEE'S RIGHTS IN POLICIES
A. Except as otherwise provided herein, the Employee shall take
no action with respect to the Policies which would in any way compromise or
jeopardize the Employer's right to be repaid the amounts it has paid toward
premiums on the Policies while this Agreement is in effect.
B. The Employee may pledge or assign the Policies, subject to the
terms and conditions of this Agreement, in order to secure a loan from the
Insurer or from a third party, in an amount which shall not exceed the
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cash surrender value of the Policies (and the cash surrender value of any
paid-up additions) as of the date to which premiums have been paid, less the
amount paid toward the premiums on the Policies by the Employer hereunder.
Interest charges on such loan shall be the responsibility of and be paid by the
Employee or, with the consent of Employer, may be paid from cash value
determined to be in excess of the amounts owed to the Employer hereunder.
C. The Employee may give the Policies, or any undivided portion
thereof, to a donee or donees, subject always to the Employer's right to be
repaid the amounts due it hereunder and the collateral assignment of the
Policies as security therefor.
D. The Employee shall have the sole right to surrender or cancel
the Policies, and to receive the full cash surrender value of the Policies
directly from the Insurer. To facilitate payment of amounts owed to the
Employer, Employee agrees that he will cooperate with Employer and the Insurer
so that the Employer may be paid directly all amounts that it is owed by the
Insurer, but any such payment (whether pursuant to a policy loan to the Employee
or a partial or full surrender) shall be considered a payment from the Employee
for purposes of this Agreement. Upon receipt of such payment, the Employer will
release the assignment and the Employee shall own the policy free of all
provisions and restrictions of the assignment and this Agreement shall thereupon
terminate.
IV. COLLECTION OF DEATH PROCEEDS.
A. Upon the death of the Employee, the Employer and the
beneficiary shall cooperate to take whatever action is necessary to collect the
death benefit provided under the Policies; when such benefit has been collected
and paid as provided herein, this Agreement shall thereupon terminate.
B. Upon the death of the Employee, the Employer shall have the
unqualified right to receive a portion of such death benefit equal to the total
amount of the premiums paid by it hereunder, without interest. The balance of
the death benefit provided under the Policies, if any, shall be paid directly to
the Employee's beneficiary, in the manner and in the amount or amounts provided
in the beneficiary designation for the Policies. In no event shall the amount
payable to the Employer hereunder exceed the Policies' proceeds payable at the
death of the Employee. No amount shall be paid from such death benefit to the
beneficiary until the full amount due the Employer pursuant to the collateral
assignment has been paid. The parties hereto agree that the beneficiary
designation provision of the Policies shall conform to the provisions hereof.
V. TERMINATION OF THE AGREEMENT DURING THE EMPLOYEE'S LIFETIME.
The Employee may terminate this Agreement, while no premium under the Policies
is overdue, by written notice to the other parties hereto. Such termination
shall be effective as of the date of such notice.
VI. DISPOSITION OF THE POLICIES ON TERMINATION OF THE AGREEMENT DURING THE
EMPLOYEE'S LIFETIME.
A. For sixty (60) days after the date of the termination of this
Agreement during the Employee's lifetime, the Employee shall have the option of
obtaining the release of the collateral assignment of the Policies to the
Employer. To obtain such release, the Employee shall repay to the Employer the
total amount of the premium payments made by the Employer hereunder, without
interest. Upon receipt of such amount, the Employer shall release the collateral
assignment of the Policies, by the execution and delivery of an appropriate
instrument of release.
B. If the Employee fails to exercise such option within such
sixty (60) day period, then, at the request of the Employer, the Employee shall
execute any document or documents required by the Insurer to transfer the
interest of the Employer in the Policies to the Employer, and such transfer may
be accomplished at Employee's option by means of a loan to him or a partial
surrender of the policy. If the Employee does not cooperate, the Employer may
direct the Insurer to honor the collateral assignment and to make a partial
surrender of the policy so
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that the Employer may be paid the amount it is owed directly. After the Employer
is paid the amount of the premium payments made by it, neither the Employer nor
the Employer's successors, assigns or beneficiaries shall have any further
interest in and to the Policies, either under the terms thereof or under this
Agreement.
VII. INSURER NOT A PARTY. The Insurer shall be fully discharged from their
obligations under the Policies by payment of the Policies death benefits to the
beneficiary or beneficiaries named in the Policies, subject to the terms and
conditions of the Policies. In no event shall the Insurer be considered a party
to this Agreement, or any modification or amendment hereof. No provision of this
Agreement, nor of any modification or amendment hereof, shall in any way be
construed as enlarging, changing, varying, or in any other way affecting the
obligations of the Insurer as expressly provided in the Policies, except insofar
as the provisions hereof are made a part of the Policies by the collateral
assignment executed by the Employee and filed with the Insurer in connection
herewith.
VIII. NAMED FIDUCIARY, DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND
ADMINISTRATION.
A. The Compensation Committee is hereby designated as the named
fiduciary under this Agreement. The named fiduciary shall have authority to
control and manage the operation and administration of this Agreement, and it
shall be responsible for establishing and carrying out a funding policy and
method consistent with the objectives of this Agreement.
B. CLAIM. A person who believes that he or she is being denied a
benefit to which he or she is entitled under this Agreement (hereinafter
referred to as a "Claimant") may file a written request for such benefit with
the Committee, setting forth his or her claim. The request must be sent in care
of the General Counsel of the Committee at its then principal place of business.
C. CLAIM DECISION. Upon receipt of a claim, the Committee shall
advise the Claimant that a reply will be forthcoming within ninety (90) days and
shall, in fact, deliver such reply within such period. The Committee may,
however, extend the reply period for an additional ninety (90) days for
reasonable cause. If the claim is denied in whole or in part, the Committee
shall adopt a written opinion, using language calculated to be understood by the
Claimant, setting forth: (a) the specific reason or reasons for such denial: (b)
the specific reference to pertinent provisions of this Agreement on which such
denial is based; (c) a description of any additional material or information
necessary for the Claimant to perfect his or her claim and an explanation why
such material or such information is necessary; (d) appropriate information as
to the steps to be taken if the Claimant wishes to submit the claim for review;
and (e) the time limits for requesting a review under subsection 8.d hereof.
D. REQUEST FOR REVIEW. Within sixty (60) after the receipt by the
Claimant of the written opinion described above, the Claimant may request in
writing that the Committee review its determination of the Committee. Such
request must be addressed to the General Counsel of the Employer at the
Employer's principal place of business. The Claimant or his or her duly
authorized representative may, but need not, review the pertinent documents and
submit issues and comments in writing for consideration by the Committee. If the
Claimant does not request a review of the Committee's determination within such
sixty (60) day period, he or she shall be barred and estopped from challenging
the Committee's determination. After considering all materials presented by the
Claimant, the Committee will render a written opinion, written in a manner
calculated to be understood by the Claimant, setting forth the specific reasons
for the decision and containing specific references to the pertinent provisions
of this Agreement on which the decision is based. If special circumstances
require that the sixty (60) day time period be extended, the Committee will so
notify the Claimant and will render the decision as soon as possible, but no
later than one hundred twenty (120) days after receipt of the request for
review.
IX. AMENDMENT. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or their respective
successors or assigns, and may not be otherwise terminated except as provided
herein.
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X. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Employer and its successors and assigns, and the Employer, the
Employee, and their respective successors, assigns, heirs, executors,
administrators and beneficiaries.
XI. NOTICE. Any notice, consent or demand required or permitted to be given
under the provisions of this Agreement shall be in writing, and shall be signed
by the party giving or making the same. If such notice, consent or demand is
mailed to a party hereto, it shall be sent by United States certified mail,
postage prepaid, addressed to such party's last known address as shown on the
records of the Employer. The date of such mailing shall be deemed the date of
notice, consent or demand.
XII. GOVERNING LAW. This Agreement, and the rights of the parties hereunder,
shall be governed by and construed in accordance with the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, as of the day and year first above written.
EKCO GROUP, INC.
By
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ATTEST:
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Secretary
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[Employee]
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SCHEDULE OF SPLIT DOLLAR AGREEMENTS
WITH EKCO GROUP, INC.
Each of the following persons currently has a Split Dollar Agreement
with Ekco Group, Inc. which is identical in form to the foregoing agreement
except for the date and for the face amount of the policy of life insurance
described in Exhibit A:
NAME AND POSITION FACE AMOUNT
WITH THE COMPANY DATE OF AGREEMENT OF POLICY
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Xxxxxx X. XxXxxxxxxx 10-01-93 $471,381
Executive Vice President,
Finance and Administration,
& Chief Financial Officer
Xxxxx X. XxXxxxxxx 10-01-92 279,742
Vice President & Controller
Xxxxxxx X. Xxxxxxxxx 10-01-92 527,352
Executive Vice President
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