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Exhibit 10.43
FILENE'S BASEMENT CORP.
EXECUTIVE SPLIT DOLLAR LIFE INSURANCE AGREEMENT
(COLLATERAL ASSIGNMENT METHOD)
This AGREEMENT made effective this [ ] of [ ], by and
between Filene's Basement Corp., a Massachusetts corporation (the "Employer"),
and [ ] (the "Executive").
WITNESSETH
WHEREAS, the Employer highly values the efforts, abilities and
accomplishments of the Executive, and
WHEREAS, the Executive is deemed a member of a select group of management
and/or one of the highly compensated employees of the Employer, and
WHEREAS, the Employer, as an inducement of such continued employment,
wishes to assist the Executive with his or her personal life insurance program,
and
WHEREAS, the Executive agrees to participate in such program to the extent
hereinafter provided.
NOW, THEREFORE, the parties named above (the "Parties") hereby agree as
follows:
ARTICLE 1. LIFE INSURANCE POLICIES.
1.1 ISSUANCE. In furtherance of the purposes of this Agreement, one or
more life insurance contracts (each referred to as a "Policy," and all referred
to collectively as the "Policies") have been applied for on the life of the
Executive from AETNA LIFE INSURANCE COMPANY (the "Insurer"). Schedule A hereto
contains particulars on the Policies. This Agreement is effective as to each
Policy upon execution hereof or upon issuance and acceptance of such Policy
whichever is later.
1.2 PAYMENT OF PREMIUMS. The Executive shall not contribute to pay
premiums on the Policy. The Employer shall contribute an amount equal to the
annual premium due to the Insurer. The payment of the premium shall be made on
or before the date the premium is due. Premiums shall be paid in accordance with
the Policies. To the extent consistent with the Insurer's billing practices, all
premium notices shall be sent both to the Employer and to the Executive.
1.3 DIVIDENDS. All dividends attributable to the Policies shall be applied
to the purchase of Paid-Up Additions thereunder.
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1.4 POLICY COMPONENTS. As used herein:
(a) "Part One" of each Policy is an amount equal to the lesser of the
cash value of the Policy or the premiums paid by the Employer on the
Policy. The Employer shall properly certify, as required by the
Insurer, and the Insurer shall properly certify the extent of Part
One of the Policy and payment of such amount shall release the
Insurer from any liability to the Employer.
(b) "Part Two" of each Policy is an amount equal to the excess of the
proceeds or cash value of the Policy over Part One of the Policy.
1.5 EMPLOYER'S RIGHTS IN THE POLICIES. The Employer shall have the
specific, limited right to receive from the Insurer Part One of each the Policy
upon the lapse, surrender, maturity, or other termination of the Policy. Such
right is referred to herein as the "Refund Right".
1.6 EXECUTIVE'S RIGHTS IN THE POLICIES. The Executive shall retain and may
exercise all incidents and rights of ownership with respect to the Policies
except that:
(a) The Executive's right to receive the cash surrender value of the
Policy on lapse, surrender, or other termination of the Policy and
to name a beneficiary to receive death proceeds shall be subject to
the Refund Right.
(b) The Executive may not surrender, cancel, or borrow upon the security
of the Policies while this Agreement is in effect.
1.7 CUSTODY AND SAFEKEEPING. The Employer shall hold and be responsible
for safeguarding the Policies; provided, that if the Employer assigns its rights
under this Agreement with respect to any Policy as provided in Section 4.1 of
this Agreement, the Employer shall deliver the Policies to the assignee, and the
assignee shall be responsible for safeguarding the Policies.
1.8 ADMINISTRATIVE COOPERATION. The Parties shall execute and forward
promptly and without unreasonable delay, changes in beneficiary designations
forms and documents, including the Policies, as required by the Insurer, to
facilitate the exercise of any rights of the parties hereto. The Parties shall
not be required by this Section 1.8 to execute any documents or take any action
that would impair their own interests under the Policies.
ARTICLE 2. COLLATERAL ASSIGNMENT.
2.1 ASSIGNMENT BY THE EXECUTIVE. For the purposes of securing the Refund
Right with respect to each the Policy, concurrently with the execution of this
Agreement, the Executive shall execute a Collateral Assignment of each Policy in
the form of Exhibit A as
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security for the premium advances made by the Employer with respect to such the
Policy. Such Collateral Assignment shall not be inconsistent with the rights of
the Parties under this Agreement.
ARTICLE 3. TERMINATION OF AGREEMENT.
3.1 DATE OF TERMINATION. This Agreement shall terminate upon any of the
following events:
(a) Performance of its terms, following death of the Executive;
(b) Termination of the Executive's employment with Employer for reasons
other than death;
(e) Any action by one party that would defeat or impair the interest of
such other party other than death or termination of employment;
provided that this Section 3.1(c) shall not give the Employer any
right to defeat or impair the interest of Executive. Such action
shall include, but is not limited to failure to pay premiums as
agreed or cancellation of a Policy by any party hereto.
(d) Release of the Employer's rights hereunder by the Employer or its
assignee.
3.2 REFUND RIGHT. In all instances of termination other than by release of
the Refund Right to the Executive or action of the Employer described in Section
3.1(c), the Employer (or, if the Employer has assigned its rights with respect
to a policy pursuant to Section 4.1, the Employer's assignee) shall be entitled
to an amount equal to Part One of each Policy. Any action of the Employer
described in Section 3.1(c) shall cause a release of the Refund Right to the
Executive. In the event the Employer is entitled to an amount equal to Part One
of each Policy, the Executive shall elect whether such amount shall be paid by
policy loan or whole or partial surrender of the Policy; provided, that if the
Executive does not notify the Employer of the Executive's election within thirty
(30) days after the date this Agreement terminated, the Employer may, in its
option: (i) surrender the Policy; (ii) partially surrender the Policy to the
extent necessary to withdraw Part One of the Policy; or (iii) satisfy its
entitlement to Part One of the policy by a combination of transactions described
in (i) through (iii). In each case, the Employer shall certify, as required by
the Insurer, the extent of Part One of the Policy, and payment of such amount
shall release the Insurer from any liability to the Employer. All Parties shall
execute the documents necessary to facilitate such use of the total cash value,
regardless of any rights any party may have in such total cash values.
3.3 RELEASE OF REFUND RIGHT. Upon release of the Refund Right, the
Executive shall have full ownership rights in the Policies, and all claims,
options, privileges, benefits, right,
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title, or interest of the Employer (to the extent not previously assigned) or
its assignee shall end.
3.4 DISPOSITION OF POLICY UPON TERMINATION OF AGREEMENT. Except as
provided in Section 3.2 of this Agreement, the Executive may dispose of all or
any portion of the Policy upon termination of this Agreement by sale or
otherwise except that no disposition of such the Policy shall take place unless:
(i) the Employer, or if Employer has assigned its rights under this Agreement,
the Employer's assignee, has certified to the Insurer that its interest in such
the Policy has been satisfied or released; or (ii) the Executive so certifies
with written notice to the Employer (or its assignee), and the Employer (or its
assignee) does not, within thirty (30) days after such notice, contest such
certification.
ARTICLE 4. TRUST.
4.1 ASSIGNMENT BY EMPLOYER. With the written consent of the Executive, the
Employer may assign its rights under this Agreement, including its interest in
the Policies created by the collateral assignment described in Section 2.1 of
this Agreement and its Refund Right described in Section 3.2 of this Agreement,
to such bank trust department or trust company as the Employer shall select in
its sole discretion (together with its successors in trust, the "Trustee"), as
trustees of the Filene's Basement Corp. Executive Severance Plan Trust, provided
that the Trustee thereof agrees to assume responsibility for safeguarding the
Policies. Except as may be provided in the governing instrument of such Trust,
such assignment to the Trustee shall terminate all interest of the Employer in
the Policies, and all of its right to receive any portion of the proceeds of the
Policies on maturity or surrender or pursuant to the Refund Right described in
Section 3.2 of this Agreement, or otherwise; provided, that such assignment to
the Trustee shall not relieve the Employer of any of its duties (including the
duty to advance premiums) or responsibilities under this Agreement.
ARTICLE 5. ADMINISTRATION.
5.1 PLAN NAME. This Agreement and other similar agreements constitute the
Filene's Basement Corp. Executive Split Dollar Plan (the "Plan").
5.2 ADMINISTRATOR. The Employer shall be the Administrator of the Plan for
purposes of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). The business address and telephone number of the Administrator are:
Filene's Basement Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
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5.3 RESPONSIBILITY FOR ADMINISTRATION. The Employer shall have the
authority to control and manage the operation and administration of the Plan.
However, the Employer may allocate its responsibilities for the operation and
administration of the Plan, including the designation of persons who are not
named fiduciaries, to carry out fiduciary responsibilities. The Employer shall
effect such allocation of responsibilities by a written instrument signed by any
appropriate corporate officer. The Employer shall be responsible for making
timely delivery of any required premiums to the Insurer. All Plan documents
shall be retained by the Employer and made available for examination at the
Employer's business address. Upon written request, the Plan document and other
information shall be provided to the parties to the Plan.
5.4 CLAIMS PROCEDURE. Benefits shall be payable in accordance with the
Plan provisions. Should the Executive or any beneficiary fail to receive
benefits to which the Executive or any beneficiary believes he or she is
entitled, a claim may be filed. Any claim for a Plan benefit hereunder shall be
filed by the Executive or any beneficiary ("Claimant") or a duly authorized
representative of the Claimant of the Plan by written communication delivered to
the Employer (or its assignee) which is reasonably calculated to bring the claim
to the attention of the Employer.
If a claim for a Plan benefits is wholly or partially denied by the
Employer or its assignee, a written notice of the decision shall be furnished to
the Claimant or his or her duly authorized representative by the Employer or its
assignee within a reasonable period of time after receipt of the claim by the
Plan, which notice shall include the following information;
(a) The specific reason(s) for the denial;
(b) Special reference to the pertinent Plan provisions upon which the
denial is based;
(c) A description of any additional material or information necessary
for the Claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) An explanation of the Plan's claim review procedures.
In order that a Claimant may appeal a denial of a claim, a Claimant or his or
her duly authorized representative:
(a) May request a review by written application to the Employer or its
assignee not later than sixty (60) days after receipt by the
Claimant of written notification of denial of a claim;
(b) May review pertinent documents; and
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(c) May submit issues and comments in writing.
A decision on review of a denied claim shall be made by the Employer or
its assignee not later than sixty (60) days after the Plan's receipt of a
request for review, unless special circumstances require an extension of time
for processing, in which case a decision shall be rendered by the Employer or
its assignee within a reasonable period of time, but not later than one hundred
twenty (120) days after receipt of a request for review. The decision on review
shall be in writing and shall include the specific reason(s) for the decision
and the specific reference(s) to the pertinent Plan provisions on which the
decision is based.
Notwithstanding anything contained in this section to the contrary, any
claim for a death benefit under a Policy shall be filed with the Insurer by the
Claimant or his or her duly authorized representative on the form or forms
prescribed for such purpose by the Insurer. The Insurer shall have sole
authority for determining whether a death claim shall or shall not be paid,
either in whole or in part, in accordance with the terms of such Policy.
ARTICLE 6. AMENDMENT OF AGREEMENT.
6.1 AMENDMENT BY PARTIES. This Agreement may be altered, amended or
modified, including the addition of any extra Policy provisions, by a written
agreement signed by the Employer and the Executive. It shall be the obligation
of the Employer to notify the Insurer of any amendments or changes to this
Agreement.
ARTICLE 7. INSURER.
7.1 LIABILITY OF INSURER. No Insurer shall be a party to this Agreement.
With respect to any Policy of insurance issued pursuant to this Agreement, the
issuing Insurer shall have no liability except as set forth in the Policy. Such
Insurer shall not be bound to inquire into or take notice of any of the
covenants herein contained as to policies of life insurance, or as to the
application of the proceeds of such policies. The Insurer shall be discharged
from all liability in making payments of the proceeds of Part One of the Policy
to the Employer or Employer's designee or assignee and of Part Two of the Policy
to Executive or Executive's designee and in permitting rights and privileges
under a Policy to be exercised pursuant to the provisions of the Policy.
ARTICLE 8. MISCELLANEOUS.
8.1 GOVERNING LAW. To the extent not preempted by federal law, this
Agreement shall be governed by and construed in accordance with the laws of
Massachusetts.
8.2 INTERPRETATION OR AGREEMENT. Where appropriate in this Agreement,
words used in the singular shall include the plural and words used in the
masculine shall include the feminine and vice versa.
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8.3 BINDING AGREEMENT. This Agreement shall bind all Parties, their
successors and assigns and any Policy beneficiary.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year above stated.
Attest FILENE'S BASEMENT CORP.
By:
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Name: Name:
Title: Title:
[seal]
Agreed to and accepted as set forth above.
Witness
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Name:
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SCHEDULE A
(LIST OF POLICIES)
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EXHIBIT A
(FORM OF COLLATERAL ASSIGNMENT)
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