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SPLIT DOLLAR AGREEMENT
This Agreement, made as of June 1, 1995, by and between Omnicare
Management Company ("the Corporation"), a Delaware corporation with offices at
2800 Chemed Center, 000 X. Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 and Xxxxxxx X.
Xxxxxxxxxx (the "Employee"), who is an employee of the Corporation.
1. PREMISES
1.1 The Employee is a valuable employee of the Corporation.
He wishes to provide adequate protection for his family by
insuring his life. The Corporation will assist the Employee
in providing this insurance coverage by payment of part of the
premiums under a split dollar arrangement, whereby the
Employee will be the owner of a life insurance policy which
will be collaterally assigned to the Corporation as
security for amounts the Corporation will contribute for
the premium payments.
2. APPLICATION FOR INSURANCE
2.1 The Employee has applied to Phoenix Home Life Mutual
Insurance Company for an Executive Equity Life Insurance
Plan on the life of the Employee for $1,300,000.00 (the
"Policy").
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3. POLICY OWNERSHIP
3.1 The Employee shall own the Policy and may exercise all
rights of ownership with respect to it, subject only to the
security interest of the Corporation as expressed in this
Agreement and the collateral assignment of the Policy to the
Corporation.
4. PAYMENT OF PREMIUMS
4.1 On or before the due date of each annual premium on the
Policy, the Corporation will pay to Phoenix Home Life Mutual
Insurance Company an amount equal to the greater of 80 percent
of the annual premium or the annual premium less the economic
benefit cost received by the Employee (as measured by the
Phoenix Home Life term insurance rates) for the portion of the
insurance which the beneficiary or beneficiaries named by the
Employee or his transferee would be entitled to receive if the
Employee died during the policy year for which the annual
premium is paid.
4.2 On or before the due date of each annual premium on the
Policy, the Corporation will pay to Phoenix Home Life Mutual
Insurance Company,
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on behalf of the Employee, the remainder of the annual premium.
This payment will constitute compensation to the Employee in the
form of a bonus and will be considered paid by the Employee for
purposes of the Assignment (as defined in Article 5).
4.3 These premium advances by the Corporation shall apply
specifically to annual premiums due under the Policy up to the
Employee's age of 65. However, additional premium advances may
be made by mutual agreement of the parties.
5. ASSIGNMENT OF POLICY
5.1 The Employee shall collaterally assign the Policy to the
Corporation so as to reflect the respective interests of the
parties under this Agreement, said collateral assignment
("Assignment") having been executed by the parties on the date
of this Split Dollar Agreement, and thus made a part of such
Policy and this Agreement.
6. USE OF DIVIDENDS
6.1 The dividends declared by Phoenix Home Life Mutual
Insurance Company on the Policy will be
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used to purchase Option Term with the balance used to purchase paid-up
insurance.
6.2 The dividend option which is specified in paragraph 6.1 of this
Article will not be terminated or changed without a conforming amendment
to this Agreement and unless such change is done in accordance with the
provisions of Part D "Joint Rights" section of the Assignment.
7. SURRENDER OF POLICY
7.1 The Employee shall have the sole and exclusive right to surrender
the Policy.
7.2 If the Policy is surrendered, the Employee shall direct the
insurance company in writing to draw a check payable to the Corporation
in an amount equal to the "Assignee's Cash Value Rights", as defined
within the provisions of Part A "Definitions" section of the
Assignment.
7.3 If there is a delay in the surrender of the Policy by either party
to this Agreement, and if such delay results in diminished policy values
being available to either party, neither party to this Agreement shall
hold the insurance
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company liable for such diminution in Policy values.
8. DEATH CLAIMS
8.1 Upon the death of the Employee, the Corporation shall have an
interest in the proceeds of the Policy equal to the "Assignee's Death
Benefit Share", as defined within the provisions of Part A "Definitions"
section of the Assignment. The balance of proceeds remaining shall be
paid directly by the insurance company to the beneficiary or
beneficiaries designated in the Policy.
9. TERMINATION OF AGREEMENT
9.1 This Agreement shall terminate upon the first to occur of (i)
surrender of the Policy by the Employee, (ii) written notice of
termination given by the Employee to the Corporation, and (iii)
termination of the Employee's employment with the Corporation for any
reason other than death; provided however that if a Change of Control
(as defined in Exhibit A to this Agreement) occurs, this Agreement shall
not terminate until the earlier of the Employee's reaching age 65 years
and the Employee's death.
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9.2 Prior to termination of this Agreement, the Employee shall
direct the insurance company in writing to draw a check payable
to the Corporation for an amount equal to the "Assignee's Cash
Value Interest", as defined within the provisions of Part A
"Definitions" section of the Assignment. Upon receipt of this
amount, the Corporation shall release the security interest of
the Corporation expressed in this Agreement and the Assignment.
10. SPECIAL PROVISIONS
The following provisions are part of this Plan and are intended to
meet the requirements of the Employee Retirement Income Security
Act of 1974:
10.01 - The named fiduciary: The Secretary of the Company.
10.02 - The funding policy under this Plan is that all
premiums on the Policy be remitted to the Insurer
when due.
10.03 - Direct payment by the Insurer is the basis of
payment of benefits under this Plan, with those
benefits in turn being based on the
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payment of premiums as provided in the Plan.
10.04 - For claims procedure purposes, the "Claims Manager"
shall be the Secretary of the Company.
(a) If for any reason a claim for benefits under
this Plan is denied by the Company, 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:
(1) The claimant's claim shall be deemed
filed
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when presented orally or in writing to the
Claims Manager.
(2) The Claims Manager's explanation shall be
in writing delivered to the claimant
within 90 days of the date the claim
is filed.
(b) 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.
(c) 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
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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 claims shall be deemed denied on review.
11. AMENDMENT AND BINDING EFFECT
11.1 This embodies all agreements by the parties made with
respect to the Policy. The Agreement shall not be modified or
amended except by a writing signed by the parties. The Agreement
shall be binding upon the parties, their heirs, legal
representatives, successors and assigns.
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00. GOVERNING LAW
12.1 This Agreement shall be subject to and shall be construed
under the laws of the State of Ohio.
Executed by the parties at Cincinnati, Ohio, as of June 1, 1995.
OMNICARE MANAGEMENT COMPANY
/s/ Xxxxx Xxxx By: /s/ X.X. Xxxxxxxx
----------------------------- --------------------------
Witness Signature, Corporate Title
/s/ Xxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------- --------------------------
Witness Xxxxxxx X. Xxxxxxxxxx
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EXHIBIT A
OMNICARE, INC.
SPLIT DOLLAR AGREEMENT
"Change of Control" shall mean: The Corporation obtains actual
knowledge that any of the following events has occurred: (i) any person other
than the Corporation or any Subsidiary has become the beneficial owner of 15%
or more of the combined voting power of the Corporation's then outstanding
voting securities; (ii) the stockholders of the Corporation have approved: (1)
an agreement to merge or consolidate with or into another corporation and the
Corporation or another corporation wholly-owned by the Corporation, is not the
surviving corporation, or (2) an agreement to sell or otherwise dispose of all
or substantially all of the assets of the Corporation (including a plan of
liquidation); or (iii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors cease for
any reason to constitute at least a majority of the Board of Directors, unless
the nomination for the election by the Corporation's stockholders of each new
director was approved by a vote of at least one-half of the persons who were
directors at the beginning of the two-year period.
For purposes of this definition, a person shall be deemed the
"beneficial owner" of any securities (i) which such person or any of its
Affiliates or Associates beneficially owns, directly or indirectly; or (ii)
which such person or any of its Affiliates or Associates has, directly or
indirectly, (1) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (2) the right to vote
pursuant to any agreement, arrangement or understanding, or (iii) which are
beneficially owned, directly or indirectly, by any other person with which such
person or any of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
securities.
For purposes of this definition, a "person" shall mean any individual,
firm, company, partnership, other entity or group, and the terms "Affiliate" or
"Associate" shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as in effect on
June 1, 1995.
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