EXHIBIT 10.8
EXECUTIVE RETIRING ALLOWANCE AGREEMENT
MEMORANDUM OF AGREEMENT entered into at Markham, Ontario on
the ____________ day of ______________, 20__.
ARTICLE I. INTRODUCTION
Section 1.01 This document constitutes the Executive Retiring
Allowance Agreement (the "Agreement") between ____________________ (hereinafter
referred to as the "Executive") and Extendicare Health Services Inc.
(hereinafter referred to as the "Company").
Section 1.02 The basic purpose of the Agreement is to provide
the Executive with an incentive to remain in the employ of the Company and to
make suitable provision for the retirement income of the Executive and other
related contingencies above and beyond those that are provided under the Pension
Plan.
ARTICLE II. DEFINITIONS
Section 2.01 "Actuary" means the actuary for the Pension Plan.
Section 2.02 "Beneficiary" means, on the date such
determination is being made, the Executive's beneficiary as defined under the
Pension Plan.
Section 2.03 "Benefit Service" means the number of years (with
complete months counted as 1/12th of a year) during the period beginning on the
Executive's employment with the Company and ending on the Executive's retirement
or termination of employment with the Company.
Section 2.04 "Company Service" means the number of years (with
complete months counted as 1/12th of a year) during the period beginning on the
Executive's employment with the Company and ending on the Executive's retirement
or termination of employment with the Company.
Section 2.05 "Earliest Retirement Date" means the first day of
the calendar month coincident with or next following the latest of:
- / / the Executive's attainment of age fifty-five (55);
and
- / / the Executive's completion of ten (10) years of
Company Service,
but in no event shall be later that the Executive's Normal Retirement Date.
Section 2.06 "Final average Salary" means twelve (12) times
- / / the average of the Executive's monthly Salary for the
period of thirty-six (36) consecutive months of
Company Service during which he received his highest
monthly Salary; or,
- / / in the event that the Executive has less than
thirty-six (36) months of Company Service, the
average of the Executive's monthly Salary for his
actual months of Company Service.
Section 2.07 "Normal Retirement Date" means the first day of
the calendar month coincident with or next following the Executive's attainment
of age sixty (60).
Section 2.08 "Pension Plan" means the Crownx Inc. Pension Plan
for Senior Executives in Canada as amended and restated effective January 1,
1987, and including any amendments which are made from time to time to such
plan.
Section 2.09 "Predecessor Plans" means, collectively, all
pension plans or other retirement income arrangements that are or were sponsored
by either the Company or a previous employer of the Executive, their corporate
Predecessors or successors, or by an entity related to either the Company or a
previous employer, but Predecessor Plans shall not include:
- / / the Pension Plan;
- / / this Agreement; or
- / / any other Agreement entered into between the Company
and the Executive which expressly provides that it is
not to be considered as a Predecessor plan for the
purposes of this Agreement.
Section 2.10 "Predecessor Plan Benefits" means, collectively,
the annual amount of retirement income to which the Executive is eligible under
the terms of all Predecessor Plans from the date of his retirement, including,
without limiting the generality of the foregoing, the amount of pension which
could be provided (in the form outlined in section 6.02) by any capital
accumulation benefits and by any prior lump sum distributions paid from
Predecessor Plans in respect to the Executive.
Section 2.11 "Retiring Allowance" means the amount payable to
the Executive pursuant to the terms of this Agreement.
Section 2.12 "Salary" means the Executive's regular base
salary from the Company, excluding all payments received as commission, by way
of bonus, perquisite or any other form of cash payment.
Section 2.13 "Spouse" means, on the date such determination is
being made, the Executive's spouse as defined under the Pension Plan.
Section 2.14 "Vesting Factor" means the percentage determined
by reference to the following table based on the Executive's Company Service on
the date of termination of employment.
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COMPLETE YEARS OF COMPANY VESTING FACTOR
SERVICE AT TERMINATION
Less than six (6) years Nil
Six (6) years 20%
Seven (7) years 40%
Eight (8) years 60%
Nine (9) years 80%
Ten (10) or more years 100%
ARTICLE III. AMOUNT OF RETIRING ALLOWANCE UPON RETIREMENT
Section 3.01 Subject to the terms and conditions of this
Agreement, the Company shall pay to the Executive in equal monthly installments
a Retiring Allowance upon retirement from active service on or after the
Executive's Normal Retirement Date, the annual amount which is calculated as the
greater of (a) and (b) where:
(a) is the excess, if any, of:
- / / two percent (2%) of Final Average Salary for each
year of Benefit Service up to thirty-five (35) such
years;
over the sum of
- / / the amount of pension, if any, actually payable to
the Executive from year to year under the terms of
the Pension Plan in the normal form provided
-thereunder, including, if a lump sum settlement is
made from the Pension Plan, the amount of pension
foregone on account of the settlement, and
- / / the Executive's Predecessor Plan Benefits, if any.
(b) is the excess, if any, of:
- / / sixty percent (60%) of Final Average Salary, reduced
by two percent (2%) of Final Average Salary for each
year (with complete months to count as 1/12th of a
year) by which the Executive's retirement from active
service precedes his completion of fifteen (15) years
of Benefit Service
over the sum of
- / / the amount of pension, if any, actually payable to
the Executive from year to year under the terms of
the Pension Plan in the normal form provided
thereunder, including, if a lump sum settlement is
made from the Pension Plan, the amount of pension
foregone on account of the settlement, and
- / / the Executive's Predecessor Plan Benefits, if any.
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Such Retiring Allowance payment shall commence on the first day of the calendar
month coincident with or next following the Executive's retirement.
Section 3.02 In the event that the Executive's employment with
the Company terminates
- / / after his Earliest Retirement Date but before his
Normal Retirement Date; and
- / / the Company consents to the Executive's retirement
before Normal Retirement Date,
then the Company shall pay to the Executive in equal monthly installments a
Retiring Allowance, the annual amount which is calculated as the greater of (a)
and (b) where:
(a) is the excess, if any, of:
- / / two percent (2%) of Final Average Salary for each
year of Benefit Service up to thirty-five (35) such
years;
over the sum of
- / / the amount of pension, if any, actually payable to
the Executive from year to year under the terms of
the Pension Plan in the normal form provided
thereunder, including, if a lump sum settlement is
made from the Pension Plan, the amount of pension
foregone on account of the settlement, and
- / / the Executive's Predecessor Plan Benefits, if any.
(b) is the excess, if any, of:
- / / sixty percent (60%) of Final Average Salary, reduced
by two percent (2%) of Final Average Salary for each
year (with complete months to count as 1/12th of a
year) by which the Executive's retirement from active
service precedes his completion of fifteen (15) years
of Benefit Service
over the sum of
- / / the amount of pension, if any, actually payable to
the Executive from year to year under the terms of
the Pension Plan in the normal form provided
thereunder, including, if a lump sum settlement is
made from the Pension Plan, the amount of pension
foregone on account of the settlement, and
- / / the Executive's Predecessor Plan Benefits, if any.
Such Retiring Allowance payments shall commence on the first day of the calendar
month coincident with or next following the Executive's retirement.
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ARTICLE IV. DEATH BENEFITS
Section 4.01 In the event of the death of the Executive after
commencement of a Retirement Allowance, subsequent monthly installments, if any,
shall be paid in the manner and upon the terms and conditions relating to the
monthly installments determined under the provision of Article 6.
Section 4.02 If death of the Executive occurs prior to
commencement of Retiring Allowance benefits, there shall be paid to the
Executive's Spouse or, if there is no Spouse, the Executive's Beneficiary, a
lump sum death benefit equal in amount to the present value of Retiring
Allowance benefits, if any, to which the Executive would have been entitled had
he retired or terminated employment immediately prior to death. For this
purpose, Company consent shall be deemed to have been granted for purposes of
Section 3.02 should it be applicable to the Executive. The present value of the
Retiring Allowance shall be -determined by the Actuary and shall not reflect any
adjustment for the potential tax costs associated with the settlement of the
benefit.
ARTICLE V. RETIRING ALLOWANCE UPON DISABILITY OR OTHER
TERMINATION OF EMPLOYMENT
Section 5.01 In the event that the Executive's employment with
the Company is terminated by reason of a disability which qualifies the
Executive to receive long term disability income benefits under a disability
plan sponsored by the Company, the following provision shall apply in
determining the Executive's eligibility for, and amount of, Retiring Allowance:
- / / For the period while in receipt of long term
disability income benefits, the Executive shall, for
the purposes of all other Sections of this Agreement,
be considered an employee notwithstanding the fact
that there may or may not be a formal employment
relationship;
- / / Unless the Executive returns to, or remains in,
employment with the Company upon cessation of long
term disability income benefits, the Executive's
employment shall be considered to have terminated at
that time and the Executive may then become entitled
to a Retiring Allowance in accordance with the
retirement or other termination of employment
provisions of this Agreement, as applicable;
- / / In determining the amount of Retiring Allowance to
which the Executive is or may be entitled, periods
while in receipt of long term disability income
benefits shall be included as Company Service and as
Benefit Service, and the Executive's Salary for this
period shall be deemed to have continued at the rate
in effect immediately prior to having become
disabled.
Section 5.02 In the event that the Executive's employment with
Company terminates without giving rise to any benefit entitlement under either
Article 3 (Retirement from active service), Section 4.02 (Death in active
service), or Section 5.01 (Disability), then the
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Company shall pay to the Executive in equal monthly installments a Retiring
Allowance commencing at Normal Retirement Date, the annual amount of which is
calculated as
(a) x (b) x (c) - (d)
where:
(a) is the greater of
- / / two percent (2%) of Final Average Salary for each
year of projected Benefit Service, up to thirty-five
(35) such years, that the Executive would have had at
Normal Retirement Date had the Executive remained in
service with the Company until that time; and
- is sixty percent (60%) of Final Average Salary,
reduced by two percent (2%) of Final average Salary
for each year (with complete months to count as
1/12th of a year), if any, by which the Executive's
projected amount of Benefit Service at Normal
Retirement Date (determined as if the Executive
remained in service with the Company until that time)
is less than fifteen (15) years.
(b) is the ratio of the Executive's Benefit Service at the
date of termination of employment to what the Executive's Benefit Service would
be at Normal Retirement Date had the Executive remained in service with the
Company until that time.
(c) is the Vesting Factor.
(d) is the sum of:
- / / the amount of pension, if any, actually payable to
the Executive from year to year under the terms of
the Pension Plan in the normal form provided
thereunder, including, if a lump sum settlement is
made from the Pension Plan, the amount of pension
foregone on account of the settlement, and
- / / the Executive's Predecessor Plan Benefits, if any.
ARTICLE VI. PAYMENT OF RETIRING ALLOWANCE
Section 6.01 Any Retiring Allowance payable under the terms of
this Agreement shall be paid in periodic monthly amounts to the Executive on the
first (1st) day of the calendar month.
Section 6.02 Once payment of Retiring Allowance benefits has
commenced, payment of these benefits shall continue at least for the Executive's
lifetime.
If the Executive has a Spouse at the time Retiring Allowance
payments commence, then, upon the Executive's death, sixty percent (60%) of the
Retiring Allowance
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benefit which was previously payable to the Executive shall continue to be paid
to such Spouse until her death.
If the Executive does not have a Spouse at the time Retiring
Allowance payments commence, then, upon the Executive's death, monthly Retiring
Allowance payments shall continue to the Executives Beneficiary, if necessary,
until a total of ten (10) years of Retiring Allowance benefit have been paid to
the Executive and the Beneficiary combined. In this circumstance, a lump sum
settlement may be paid upon the Executive's death if such is mutually acceptable
to the Beneficiary and the Company.
Section 6.03 Notwithstanding the foregoing sections of this
Article 6, Retiring Allowance benefits may be paid in a different manner or
frequency that is mutually acceptable to the Executive and the Company. Without
limiting the generality of the foregoing, this provision shall accommodate lump
sum settlement of Retiring Allowance benefits where both the lump sum nature of
the settlement and the amount of the lump sum settlement are mutually agreeable.
ARTICLE VII. LIMITATION ON AGREEMENT AND PRESERVATION OF RIGHTS
Section 7.01 It is understood and agreed by the parties hereto
that this Agreement does not constitute a contract of employment and shall not
be deemed to restrict in any way the rights of the Company or the Executive with
respect to termination of employment. Nothing in this Agreement shall prevent
the Company from dismissing the Executive from its employ and active daily
service, with or without just cause, provided that the Executive shall have no
right hereunder where such termination is for just cause. Except as expressly
provided in this Article, nothing in this Agreement shall limit or otherwise
affect any rights or remedies of the Executive in the event of the termination
of employment by the Company.
ARTICLE VIII. NO SEIZURE
Section 8.01 The Retiring Allowance payable hereunder by the
Company is granted by way of alimentary allowance and shall not be subject to
seizure.
ARTICLE IX. NO ASSIGNMENT
Section 9.01 Neither this Agreement nor any of the rights of
the Executive hereunder shall be assigned in whole or in part and shall not be
transmitted by will or succession but shall be personal to the Executive. It is
a condition of the right of the Executive to receive this Retiring Allowance
that the Executive shall not have assigned or purported to assign this right to
-receive the Retiring Allowance or any part thereof.
ARTICLE X. SUPPORT AND DIVISION OF PROPERTY
ON MARRIAGE BREAKDOWN
Section 10.01 Notwithstanding Articles 8 and 9, if such is
pursuant to a written agreement, decree, order or judgment of a competent
tribunal, a benefit payable under this Agreement may:
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- / / be subject to execution, seizure or attachment in
satisfaction of an order for support or maintenance;
or
- / / may be assigned, pledged, charged, encumbered or
alienated to satisfy a division of matrimonial
property.
ARTICLE XI. TERMINATION OF AGREEMENT
Section 11.01 This Agreement is made subject to the
reservation that all obligations of the Company hereunder shall cease and
terminate and this Agreement shall become null and void and be cancelled in the
event of the occurrence of one or both of the following circumstances:
(a) If the Executive's service with the Company is terminated
prior to becoming entitled to a Retiring Allowance hereunder of any reason other
than death and other than disability in respect of which the Executive receives
disability income benefits under a disability plan sponsored by the Company.
(b) If any rights of the Executive to a Retiring Allowance
hereunder are seized or assigned, except as provided under Article 10.
ARTICLE XII. CURRENCY
Section 12.01 All payments to be made hereunder shall be
payable in lawful money of Canada in cash or by cheque, money order or warrant.
ARTICLE XIII. LAWS TO GOVERN
Section 13.01 This Agreement shall be governed by and
interpreted in accordance with the laws of the Province of Ontario, Canada.
ARTICLE XIV. BINDING EFFECT
Section 14.01 Subject to the foregoing, this Agreement shall
inure to the benefit of and be binding upon the Executive, the Executive's heirs
and representatives, the Company and its successors and assigns.
ARTICLE XV. RIGHT TO AMEND OR TERMINATE
Section 15.01 The Company expects to continue this Agreement
indefinitely but nevertheless reserves the right to amend or discontinue this
Agreement, provided that no such action shall adversely affect any right with
respect to benefits which have accrued immediately prior to the time such action
is taken.
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Section 15.02 Notwithstanding Section 15.01 and Section 6.03,
in the event that the Company discontinues this Agreement then the Company has
the right to settle all obligations under this Agreement by way of a lump sum
payment.
If the Company involves its authority under this Section to
make a lump sum settlement, the amount of such settlement shall be determined by
the Actuary and shall be determined in a manner which reflects the Executive's
(or other recipient's) potential tax costs, the object being to deliver to the
Executive (or other recipient) the same after-tax present value of benefit as
would have been received had settlement not been made in a lump sum form.
Section 15.03 In the event that the Pension Plan is amended so
that references contained in this Agreement are no longer applicable, the
parties hereto shall amend this Agreement accordingly and no such amendment will
be considered to adversely affect any right with respect to benefits which have
accrued immediately prior to the time such action is taken.
ARTICLE XVI. FINANCING
Section 16.01 The Executive shall not be required to make
contributions in respect of the benefits that may be provided by this Agreement.
Section 16.02 The Company does not intend to fund Retiring
Allowance benefits in advance of their due dates. Nevertheless, the Company
reserves the right to establish funding or other security arrangements if it so
wishes, and Retiring Allowance benefits, if any, will be paid from such sources
as identified by the Company from time to time.
ARTICLE XVII. NOTICE
Section 17.01 Any notice or other communication required or
permitted hereunder shall be in writing and shall be effectively given if sent
by registered mail, postage prepaid, addressed
(a) if to the Executive, to:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
(b) if to the Company, to:
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
or to such other address or addresses as may be notified by either party to the
other pursuant to the foregoing provisions, and any such notice or communication
sent by mail as aforesaid shall
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be deemed to have been given two (2) business days after the date of mailing,
except any notice of change of address which shall be effective only upon
receipt.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the day and year first above written.
EXTENDICARE HEALTH SERVICES INC.
By: _____________________________________
_________________________________________
____________________________________ And _____________________________________
Witness
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