EXHIBIT 10.1
AGREEMENT
This AGREEMENT (the "Agreement") by and between Manor Care, Inc.
("Manor Care"), Heartland Employment Services, Inc. ("Company"), Health Care and
Retirement Corporation of America ("HCRA") and Xxxx X. Xxxxxx ("Executive")
effective August 20, 2004.
RECITALS
WHEREAS, Executive is a participant in the Senior Executive Retirement
Program ("SERP"), a non-qualified benefit plan providing retirement benefits to
participants, in accordance with a formula based on the participant's highest
three-year average earnings and years of service (the "SERP Benefit") first
established by HCRA and subsequently adopted by Manor Care and then by the
Company; and
WHEREAS, HCRA, Manor Care and the Company each elected to fund their
obligations under the SERP through a collateral assignment "split-dollar" life
insurance arrangement; and
WHEREAS, Executive entered into a Split Dollar Assignment Insurance
Agreement ("SDA") with HCRA, pursuant to which the Executive became the owner of
certain life insurance policy(ies) (the "Policy") which was designed to generate
cash value sufficient to fund the Executive's SERP Benefit, and HCRA and then
later Manor Care and the Company agreed to pay the premiums on such Policy and
retain an interest (the "Corporate Interest") in the cash value of the Policy;
and
WHEREAS, Executive remains the owner of one policy which makes up part
of the Policy (the "Retained Policy"), and transferred the ownership of the
remaining policies which make up the Policy (the "ILIT Policy") to an
irrevocable life insurance trust formed under that Irrevocable Trust Agreement
dated September 28 1992 between Executive as grantor and __________________
_______, as Trustee ("Trustee").
WHEREAS, Section 5.10 of the SDA provides that in the event of a
"change in control," as defined in the SDA, Manor Care would be required to take
actions to fully fund the cash value of the Policy to equal the SERP Benefit
Executive was projected to receive at retirement which action would include, if
necessary, releasing a portion of its Corporate Interest in the Policy and, to
the extent applicable, providing a tax gross-up payment to the Executive to
cover any income taxes payable by the Executive as the result of the release of
the Corporate Interest; and
WHEREAS, the transaction in September, 1998 between the former Health
Care and Retirement Corporation and the former Manor Care, Inc. constituted a
change in control under Section 5.10 of the SDA; and
WHEREAS, on August 20, 1999 HCRA, Manor Care and Executive entered into
a Severance Agreement ("Severance Agreement") pursuant to which HCRA agreed to
provide
Executive with certain severance benefits upon termination of his employment
following a change in control of Manor Care (as defined in the Severance
Agreement), including but not limited to, fully funding the SERP Benefit and
giving Executive additional service and earnings credits for determining the
amount of the SERP Benefits, as well as making certain assumptions regarding
timing of payment of the SERP Benefit; and
WHEREAS, the provisions of the Xxxxxxxx-Xxxxx Act, effective in July,
2002, negatively impacted the SDA by potentially prohibiting the continued
payment of premiums by Manor Care to the extent such payments may be considered
loans to Executive; and
WHEREAS, in September, 2003 the Internal Revenue Service adopted new
regulations the effect of which will be to change the tax treatment of the SDA
by causing the full cash value in the Policy to become taxable to Executive at
retirement; and
WHEREAS, Section 4.1 of the SDA provides that in the event of adverse
tax consequences to Executive from recovery by the Company of the Corporate
Interest in the Policy, the Company may delay recovery of its Corporate
Interest; and
WHEREAS, Executive and the Compensation Committee of the Manor Care
Board of Directors has received and reviewed the recommendations of its tax and
compensation consultants, Deloitte & Touche, regarding the obligations to
Executive under the SERP, Severance Agreement and the SDA, as impacted by
provisions of Xxxxxxxx-Xxxxx Act and the IRS regulations referenced above; and
WHEREAS, Compensation Committee and Executive, having fully reviewed
the obligations of Manor Care and the impact of the provisions of Xxxxxxxx-Xxxxx
Act and the IRS regulations referred to above, and in view of the
recommendations of Deloitte & Touche, have agreed on actions designed to
mitigate the impact of the changes in tax treatment of the SDA on the Company
and Executive; and
WHEREAS, the Company, Manor Care, HCRA and Executive desire to enter
into this Agreement for the purpose of implementing the actions of the Board and
the Compensation Committee with respect to Executive's SERP benefit and
Executive's agreements with respect thereto.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and commitments contained herein, and for other good and valuable
consideration, the parties agree as follows:
1. SERP Benefit The Company will pay the full amount of the SERP
Benefit to Executive in cash in accordance with the provisions of the SERP.
2. Delay in Recovery of Corporate Interest. Due to the adverse tax
consequences to Executive as a result of the IRS regulations, pursuant to
Section 4.1 of the SDA, the Company agrees that the portion of the Corporate
Interest attributable to the Retained Policy shall be repaid in installments of
$2,365 per year. Such obligation shall commence in and with respect to the first
full calendar year following Executive's retirement, and such amount shall be
due and payable on December 31 of such year and subsequent years until the
Corporate Interest has been
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repaid. In the event that the Corporate Interest is not repaid in full upon
Executive's death, then the remainder of the Corporate Interest will become due
and payable upon Executive's death.
3. Additional Compensation and Tax Gross-Up. Until the Company recovers
the full Corporate Interest from both the Retained Policy and the ILIT Policy,
the Company agrees to make an additional payment to Executive ("Gross-Up
Payment") each year, in an amount such that after payment of all federal, state
and local income, employment and gift taxes imposed on Gross-Up Payment,
Executive retains an amount of Gross-Up Payment sufficient to pay (i) all the
income, employment and gift tax payments which Executive will be required to pay
on income imputed to Executive under Section 101 of the Internal Revenue Code of
1986, as amended as a result of the Policy; and (ii) the required annual
repayment of the Corporate Interest on both the Retained Policy and the ILIT
Policy.
4. Non-Competition/Non-Solicitation. In consideration of the benefits
to be provided by Paragraphs 1, 2 and 3, of this Agreement, Executive agrees
that Paragraphs 13(a)-13(c) of the Severance Agreement are amended by adding one
(1) year to the periods specified therein so that the
non-competition/non-solicitation obligations contained therein shall be
effective for a period of two (2) years following the termination of his
employment.
5. Acknowledgement. Executive acknowledges and agrees that Manor Care,
the Company and HCRA by complying with the terms of this Agreement will have
fulfilled all obligations of HCRA under Section 5.10 of the SDA, and so long as
Manor Care and the Company perform their obligations under this Agreement,
Executive shall take no action seeking additional benefits under Section 5.10 of
the SDA.
6. Other Provisions Effective. The parties agree that all other
provisions of the Severance Agreement, not amended herein, shall remain in full
force and effect.
7. Further Actions. Each party agrees to take such further action, do
such other things, and execute such other writings as shall be necessary and
proper to carry out the terms and provisions of this Agreement. Manor Care shall
cause the Company, HCRA or any successor employer of the Executive to honor and
fulfill its responsibilities and agreements under this Agreement.
8. Interpretation. This Agreement shall be subject to and shall be
construed under the laws of the State of Ohio.
9. Headings. Any headings or captions in this Agreement are for
reference purposes only, and shall not expand, limit, change or affect the
meaning of any provision of this Agreement.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement.
11. Successors. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives. This Agreement shall inure
to the benefit of and be binding upon Manor Care, the Company, HCRA and their
successors and assigns. Manor Care
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shall require any successor to all or substantially all of the business and/or
assets of Manor Care, the Company or HCRA, whether direct or indirect, by
purchase, merger, consolidation, acquisition of stock, or otherwise, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent as Manor Care, the Company or HCRA would be required to perform if no
such succession had taken place.
EXECUTIVE: MANOR CARE, INC.
_________________________________ By: ________________________________
Xxxx X. Xxxxxx
Its: ________________________________
HEARTLAND EMPLOYMENT SERVICES, INC.
By: ________________________________
Its: ________________________________
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
By: ________________________________
Its: ________________________________
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