EXHIBIT 10.28
SPLIT-DOLLAR TERMINATION AGREEMENT
This Agreement is entered into as of January 1, 2003 by and between
Matria Healthcare, Inc., a Delaware corporation (the "Company"), and Xxxxxxxx X.
Xxxxx, Xx. (the "Executive") as follows:
W I T N E S S E T H:
WHEREAS, effective July 1, 1998, the Company and the Executive entered
into a Split-Dollar Life Insurance Agreement (the "Split-Dollar Agreement"), a
Collateral Security Agreement (the "Collateral Security Agreement"), and a
related letter agreement (the "Letter Agreement") (the Split-Dollar Agreement,
the Collateral Security Agreement and the Letter Agreement are hereinafter
referred to collectively as the "Split-Dollar Program"); and
WHEREAS, pursuant to the Split-Dollar Agreement, the Company caused
Aetna Life Insurance and Annuity Company or any successor thereto (the
"Insurance Company") to issue and deliver to the Executive Policy Number
I0003341 (the "Policy") on the life of the Executive; and
WHEREAS, because of recent legislation, proposed Internal Revenue
Service ("IRS") regulations and other economic factors, the Board of Directors
of the Company has directed that the Split-Dollar Program be terminated; and
WHEREAS, the Executive has agreed to the termination of the
Split-Dollar Program on the terms and conditions set forth below:
NOW, THEREFORE, in consideration of the facts set forth above and the
various promises and covenants set forth below, the parties to this Agreement
agree as follows:
1. TERMINATION. The Executive agrees that, pursuant to the terms
and conditions set forth herein, the Split-Dollar Program, and any and all
covenants and agreements of the parties included therein, are hereby terminated
in all respects.
2. TRANSFER OF POLICY. The Executive, as owner of the Policy,
agrees to execute such forms and take such steps as are reasonably requested by
the Company to transfer sole ownership of the Policy into the name of the
Company. The Executive by this Agreement does release and forever discharge the
Company and its successors and assigns of and from any obligation or liability
of any kind arising from or relating to all prior transactions, relationships
and dealings relating to or under the terms of the Split-Dollar Program,
including, without limitation, the Company's obligations to pay premiums under
the Split-Dollar Agreement and to pay additional premiums under the Letter
Agreement; provided, however, that the Executive does not release any of the
Company's obligations under this Agreement or the SERP (as hereinafter defined).
3. RELEASE OF EXECUTIVE'S OBLIGATIONS. The Company by this
Agreement does release and forever discharge the Executive and his or her heirs,
executors, administrators,
successors and assigns of and from any obligation or liability of any kind
arising from or relating to all prior transactions, relationships and dealings
relating to or under the terms of the Split-Dollar Program.
4. ESTABLISHMENT OF SERP AND TRUST.
Simultaneously with the execution of this Agreement, the
Company will execute and deliver to the Executive a supplemental executive
retirement agreement (the "SERP"), in the form and substance of the attached
Exhibit A. The Company will establish a rabbi trust (the "Trust"), in the form
and substance of the attached Exhibit B, for the benefit of the Executive on or
before January 29, 2003.
5. AUTHORIZATION. The Company represents and warrants that this
Agreement has been duly authorized by all necessary corporate action and
constitutes a valid and legally binding obligation of the Company in accordance
with its terms.
6. MISCELLANEOUS.
(a) Notices. All notices and other communications under
this Agreement shall be in writing and shall be given by facsimile
followed by first-class mail, or by certified or registered mail with
return receipt requested, and shall be deemed to have been duly given
three (3) days after certified or registered mailing or twelve (12)
hours after transmission of a facsimile to the respective persons named
below:
If to the Company: Chief Executive Officer
Matria Healthcare, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to: General Counsel
Matria Healthcare, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax No.: (000) 000-0000
If to Executive: Xxxxxxxx X. Xxxxx, Xx.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Any party my change such party's address for notices by notice duly
given pursuant to this Section 6.
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(b) Headings. The Section headings herein are intended
for reference and shall not by themselves determine the construction or
interpretation of this Agreement.
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia.
(d) No Admissions. This Agreement is not and shall not be
construed as evidence of or an admission by the parties hereto of any
liability on either of their parts, nor shall it be deemed as an
admission of, or construed as evidence of the truth of any of the
allegations made by either of the parties hereto.
(e) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and
assigns; provided, however, that this Agreement may not be assigned by
any party hereto without the prior written consent of the other party
or parties.
(f) Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the
matters contained herein, and this Agreement contains the sole and
entire agreement among the parties hereto with respect to the subject
matter hereof and the transactions contemplated herein.
(g) Further Assurances. The parties to this Agreement
agree to execute and deliver in a timely fashion any and all additional
documents to effectuate the purposes of this Agreement.
(h) Counterparts. This Agreement may be executed in one
(1) or more counterparts which, taken together, shall constitute one
and the same Agreement.
(i) Fax Signature. This Agreement may be executed via
facsimile, and facsimile signature pages shall be deemed to be binding
and as effective as delivery of original signature pages.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
________________________________
Xxxxxxxx X. Xxxxx, Xx.
MATRIA HEALTHCARE, INC.
By: ________________________________
Title: _____________________________
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EXHIBIT A
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
EXHIBIT B
TRUST
