EXHIBIT 10.6
SPLIT-DOLLAR LIFE INSURANCE AGREEMENT
AGREEMENT, made and entered into this 5th day of September, 1996, by and
between ACT Manufacturing, Inc. a Corporation duly organized and existing under
the laws of the Commonwealth of Massachusetts and having its usual place of
business at Hudson, Massachusetts (hereinafter sometimes called the
"Corporation"), and the XXXX X. XXXX AND XXXXX X. XXXX FAMILY MAINTENANCE TRUST
under instrument dated August 16, 1996 (hereinafter called "Owner");
WITNESSETH THAT:
WHEREAS, Xxxx X. Xxxx (hereinafter called "Employee") is the Corporation's
Chairman and Chief Executive Officer and is presently employed by the
Corporation in the position of President; and
WHEREAS, in his various capacities his services have contributed to the
successful operation of the Corporation, and the Corporation and its Board of
Directors believe it is in the best interest of the Corporation to retain the
services of the Employee; and
WHEREAS, the Employee and his wife are also the owners of a sufficiently
large number of shares of common stock of the Corporation that a sale of the
maximum number of such shares permitted by law to be made during the nine (9)
months after the death of the survivor of them to provide funds for payment of
death taxes would significantly increase the trading volume in the Corporation's
stock, and could adversely impact the value of such stock; and
WHEREAS, through the within "split-dollar" arrangement it is possible for
the Corporation to advance funds to assist the Employee and his wife in
acquiring life insurance as a
source of payment of these future tax liabilities, while the Corporation
acquires rights in such insurance hereunder to protect its interest; and
WHEREAS, in light of all the above the Corporation is desirous of assisting
the Employee in paying for life insurance on his life and/or on the joint lives
of his wife and himself by entering into this "split-dollar" agreement with the
Owner; and
WHEREAS, the Owner is applying for the insurance policies listed on
Schedule A attached hereto (each such policy being referred to herein as the
"Policy" and collectively the "Policies" and the issuing insurance company of
each such policy being referred to herein as "Insurer" and collectively
''Insurers") on the life of the Employee and/or on the joint lives of the
Employee and his wife;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, receipt and adequacy of which are hereby acknowledged,
the Corporation and the Owner hereby mutually covenant and agree as follows:
ARTICLE I
Payment of Premiums
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1.01 As long as this agreement is in force (and subject to the termination
provisions contained elsewhere in this agreement), the Owner and the Corporation
agree that the Corporation will pay, subject to annual review and approval by
the Board of Directors of the Corporation, so much of the premium on each Policy
for each policy year as is equal to the total premium cost on each Policy for
each such year less the corresponding amount equal to the value of the economic
benefit of insurance protection attributable to the Employee under such policy
as set forth in pertinent IRS revenue rulings. The Corporation will make such
payment directly to the Insurers and will furnish Owner with evidence of such
payment upon request. The Owner
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will pay the balance of the premiums due on each Policy. The parties acknowledge
that this arrangement may give rise to an "economic benefit" that will be
taxable to the Employee in accordance with Revenue Rulings 64-328, 1964-2 C.B.
11, and 66-110, 1966-1 C.B. 12, and subsequent relevant legal authority, and
that this arrangement is intended to constitute a split-dollar arrangement
within the meaning of such Rulings and authority (and the parties agree to make
any amendment to this Agreement that may be reasonably required in the future to
effectuate this intention).
ARTICLE II
Policy Ownership and Dividend Application
-----------------------------------------
2.01 The Corporation's payment of premiums hereunder shall constitute
advances to Owner subject to repayment from the Policies as provided herein.
The Owner agrees to assign the Policies to the Corporation as collateral for the
amounts advanced to the Owner under this agreement, and the Corporation shall
have those rights granted to it under said assignment (the "assignment") and
this agreement. In addition, the Owner and the Corporation understand that in
the event that the Corporation would have to recognize a loss for financial
statement reporting purposes as a result of the premium payments exceeding the
increase in the net cash surrender value for the then relevant financial
statement reporting period, the Owner or the Employee may pledge additional
assets, which may be stock of the Corporation, in an amount so that the
Corporation will not have to recognize such loss. If in future reporting
periods the increase in net cash surrender value exceeds the premium payments
for such period, and a release of such additional pledged assets will not
adversely impact the Corporation's financial reports, such pledged assets will
be released to the extent such adverse impact can be avoided. As between the
Owner and the Corporation, this agreement shall take precedence over any
provisions of the
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assignment in case of a conflict between the terms of this agreement and the
assignment. Subject to the foregoing, the Owner shall retain all incidents of
ownership in the Policies (including, without limitation, the right to assign
such incidents), provided, however, that the Owner shall not borrow against,
surrender (in whole or in part) or terminate any Policy without the written
consent of the Corporation.
2.02 As long as this agreement is in force the Corporation will not borrow
against or surrender (in whole or in part) any of the Policies or exercise any
right under the assignment which would reduce or compromise the death benefit
otherwise payable to the Owner's beneficiary under Article III; the Corporation
acknowledges that it does not have the right to borrow against or surrender any
of the Policies under the assignment.
2.03 Dividends payable under each Policy will be applied as provided in
the application for such Policy or as the Owner may later duly elect pursuant to
applicable provisions of such Policy.
ARTICLE III
Beneficiary Provisions
----------------------
3.01 If the Employee dies while this agreement is in force, the death
benefit of each Policy on his life alone will be divided as follows:
(a) The Corporation will be entitled to receive an amount equal to the
aggregate premiums paid by it with respect to such Policy as of the date of
the Employee's death, less any repayment previously made to the
Corporation. If the Corporation has paid additional premiums attributable
to a rider providing for waiver of premium in the event of the disability
of the insured, "premiums" as used in this Article will not include any
premiums waived pursuant to the terms of such rider while this Agreement is
in force. If the Corporation has paid the principal of or interest on any
loans incurred against such Policy by the Owner with the consent of the
Corporation, then the Corporation shall be entitled to receive an
additional amount equal to the total of such interest and principal
repayments.
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(b) The beneficiary or beneficiaries then in effect under such Policy
specified by the Owner shall receive the balance of such Policy's death
benefit.
3.02 If the survivor of the Employee and his said wife (the "Survivor")
dies while this agreement is in force, the death benefit of each Policy on the
joint lives of the Employee and his said wife will be divided as follows:
(a) The Corporation will be entitled to receive an amount equal to the
aggregate premiums paid by it with respect to such Policy as of the date of
the Survivor's death, less any repayment previously made to the
Corporation. If this Corporation has paid additional premiums attributable
to a rider providing for waiver of premium in the event of the disability
of the insured, "premiums" as used in this Article will not include any
premiums waived pursuant to the terms of such rider while this Agreement is
in force. If the Corporation has paid the principal of or interest on any
loans incurred against such Policy by the Owner with the consent of the
Corporation, then the Corporation shall be entitled to receive an
additional amount equal to the total of such interest and principal
repayments.
(b) The beneficiary or beneficiaries then in effect under such Policy
specified by the Owner shall receive the balance of such Policy's death
benefit.
3.03 Upon the death of the Employee or the Survivor while this agreement
is in force, the Corporation agrees to take such action as may be necessary to
obtain payment from each Insurer of the amounts payable under its Policy to the
beneficiaries designated therein, including (but not limited to) providing the
Insurer with an affidavit as to the amount to which the Corporation shall be
entitled hereunder.
ARTICLE IV
Termination of Agreement
------------------------
4.01 This agreement shall terminate upon the happening of any of the
following events:
(a) Death of the Employee (such termination to occur only with respect
to the Policies on the Employee's life alone, however), or death of the
Survivor, subject in either case, however, to the provisions of Article
III, above.
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(b) Express termination by agreement in writing between the Owner and
the Corporation.
(c) Termination by thirty (30) days written notice given by either
party to the other at any time more than ten (10) years after the execution
of this agreement.
(d) Termination by ninety (90) days written notice given by the
Corporation, with the approval of at least two-thirds (2/3) of its Board of
Directors, to the Owner at any time more than three (3) and less than ten
(10) years after the execution of this agreement: provided however, that
either:
(i) the Corporation's auditors shall have first rendered a
written opinion that the Corporation has insufficient funds to
continue premium payments, or
(ii) the Corporation shall first have suffered a sustained loss
resulting in the issuance by such auditors of a "qualified statement"
citing payment of the Corporation's share of premiums under this
agreement as impairing the Corporation's ability to do business.
(e) Termination upon written notice given by the Corporation to the
Owner at any time, provided that either:
(i) the Owner (or its successor in interest) shall have failed to
pay its required share hereunder of any premium on any Policy and such
failure shall have continued through the end of such Policy's grace
period, or
(ii) the percentage of the total issued and outstanding shares of
the Corporation's common stock held (in the aggregate) by Xxxx X. Xxxx
and/or Xxxxx X. Xxxx, individually or jointly (including stock held in
the name of a trust or in any other name to the extent such stock (I)
remains includible in either of their estates for federal estate tax
purposes or (II) was placed in such trust or other name as a result of
the death of the first of them to die) shall have fallen below five
percent (5%).
(f) Termination upon written notice given by the Owner to the
Corporation at any time, provided that either of the following has
occurred:
(i) the sale, merger or consolidation of the Corporation
which results in the Corporation not being the surviving entity, or
(ii) the Employee ceases to be employed by the Corporation
for any reason, whether due to his voluntary or involuntary
termination.
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4.02 In the event of a termination under Section 4.01(b), (c), (d), (e) or
(f) above, the Owner may within seventy-five (75) days after such termination
remit to the Corporation an amount equal to the aggregate amount the Corporation
would have been entitled to receive as a death benefit under Article III,
determined as of the date of such termination as if the Employee (in the case of
Policies on the Employee's life alone then subject to this agreement) and the
Survivor (in the case of joint life Policies then so subject) had died upon such
date. Upon receipt of payment from the Owner, the Corporation will release the
assignment and the Owner shall become sole owner of the Policies free of all
provisions and restrictions of the assignment and this Agreement. If the
parties agree in writing, then in lieu of the Owner's making all or part of the
payment described above directly to the Corporation, the Corporation may obtain
all or part of such payment by making a loan or withdrawal against any Policy or
Policies prior to releasing the assignment. Any such loan or withdrawal shall
be considered a payment from the Owner for purposes of this Section and Section
4.03.
4.03 If upon expiration of the seventy-five (75) day period described in
Section 4.02 above, full payment of said aggregate amount is not received by the
Corporation pursuant to said Section, then until full payment is made the
Corporation shall remain as a collateral assignee of the Policies as long as the
Policies remain in force, and notwithstanding any other provision of this
agreement may exercise all rights and privileges under the assignment including
the right to surrender any Policy or Policies in accordance with the terms
thereof. If a Policy is subsequently surrendered or the insured Employee or
Survivor (as the case may be) later dies, the Corporation shall be entitled to
full payment (from the surrender proceeds or death benefit, as the case may be),
of so much of the aggregate amount described in Section 4.02 above, as remains
unpaid at the time of such surrender or death.
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ARTICLE V
Assignment; Reorganization
--------------------------
5.01 The Corporation agrees that it will not assign or transfer any of its
rights or obligations under any Policy or under this agreement to anyone other
than (a) the Owner or (b) another corporation or organization with which the
Corporation is merged or consolidated and which expressly assumes the rights and
obligations of the Corporation herein set forth.
ARTICLE VI
Governing Law; Entire Agreement; Successors
-------------------------------------------
6.01 This agreement will be governed by and construed in accordance with
the laws of Massachusetts, where it is made and is to be performed. It sets
forth the entire agreement between the parties concerning the subject matter
thereof. This Agreement will bind and benefit the parties and their legal
representatives, successors and assigns.
ARTICLE VII
Not a Contract of Employment
----------------------------
7.01 This agreement shall not be deemed to constitute a contract of
employment between the parties, nor shall any provision restrict the right of
the Corporation to discharge the Employee, or restrict the right of the Employee
to terminate employment. This agreement shall continue in force regardless of
any change in the employment status of the Employee, unless otherwise expressly
agreed in writing by the parties.
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ARTICLE VIII
Amendment
---------
8.01 No beneficiary under any Policy shall obtain any vested right to have
this agreement continued in full and it may be amended or modified in whole or
in part by the Owner and the Corporation in writing at any time.
ARTICLE IX
Special Provisions
------------------
The following provisions are part of this plan and are intended to meet the
requirement of the Employee Retirement Income Security Act of 1974:
(a) The named fiduciary: The Corporation.
(b) The funding policy under this plan is that all premiums on the
policies be remitted to the Insurers when due.
(c) Direct payment by the Insurers are the basis of payment of benefits
under this plan, with those benefits in turn being based on the
payment of premiums as provided in the plan.
(d) For claims procedure purposes, the "Claims Manager" shall be: The
Secretary/Clerk of the Corporation.
(1) If for any reason a claim for benefits under this plan is denied
by the Corporation, the Claims Manager shall deliver to the
claimant a written explanation setting forth the specific reasons
for the denial, pertinent references to the plan section on which
the denial is based, such other data as may be pertinent and
information on the procedures to be followed by the claimant in
obtaining a review of his claim, all written in a manner
calculated to be understood by the claimant. For this purpose:
(A) The claimant's claim shall be deemed filed when presented
orally or in writing to the Claims Manager.
(B) The Claims Manager's explanation shall be in writing
delivered to the claimant within 90 days of the date the
claim is filed.
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(2) The claimant shall have 60 days following his receipt of the
denial of the claim to file with the Claims Manager a written
request for review of the denial. For such review, the claimant
or his representative may submit pertinent documents and written
issues and comments.
(3) The Claims Manager shall decide the issue on review and furnish
the claimant with a copy within 60 days of receipt of the
claimant's request for review of his claim. The decision on
review shall be in writing and shall include specific reasons for
the decision, written in a manner calculated to be understood by
the claimant, as well as specific references to the pertinent
plan provisions on which the decision is based. If a copy of the
decision is not so furnished to the claimant within such 60 days,
the claim shall be deemed denied on review.
ARTICLE X
Notice
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Any notice which may or is required to be given under this agreement shall
be by mailing by registered or certified mail, return receipt requested, and
shall be effective upon such mailing (postage prepaid) as follows: in the case
of notice to the Corporation, addressed to ACT Manufacturing, Inc., 000 Xxxxxx
Xxxxxx, Xxxxxx, XX 00000, Attn: President, and in the case of notice to the
Owner, addressed to Xxxxxxx X. Xxxxxx, Esq., Xxxxx, Xxxxxxx & Xxxxxxxxx, 000
Xxxx Xxxxxx, Xxxxxx, XX 00000 with a duplicate copy to Xxxx X. Xxxx, 00 Xxxxxxxx
Xxxx, Xxxxxx, XX 00000, or in the case of either party to such other address or
addresses as may from time to time hereafter be designated by such party by like
notice.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this
5th day of September, 1996.
OWNER: TRUSTEES OF THE XXXX X. XXXX AND XXXXX X. XXXX
FAMILY MAINTENANCE TRUST
/s/ Xxxx X. Xxxx
By: ______________________________________________
Xxxx X. Xxxx, as Trustee and not individually
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________________________
Xxxxxxx X. Xxxxxx, as Trustee and not individually
CORPORATION: ACT MANUFACTURING, INC.
/s/ Xxxxxxxx Xxxxxxxx
By: ______________________________________________
Xxxxxxxx Xxxxxxxx, Chief Financial Officer
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SCHEDULE A
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Policy on life of Xxxx X. Xxxx
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Policies on joint lives of Xxxx X. Xxxx and Xxxxx X. Xxxx:
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Xxxx Xxxxxxx Variable Life Insurance Company
Policy No. 20009361
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