EXHIBIT 10.2
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 __________________________ as
Trustee ("Trustee") under a certain Irrevocable Trust Agreement dated September
28, 1992 between Xxxx X. Xxxxxx ("Executive") as grantor and __________________
as Trustee ("Trust ") is effective August 20, 2004.
RECITALS
WHEREAS, Executive entered into a Split Dollar Assignment Insurance
Agreement on September 28, 1992 and amended and restated same on January 17,
2002 ("SDA") with HCRA, pursuant to which the Trust became the owner of certain
life insurance policy (ies) (the "Policy") on the life of Executive 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, 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 Executive to be subject to gift tax as a result of the Policy
being held by the Trust; 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, 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 impact of 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 Trustee desire to enter into
this Agreement for the purpose of implementing the actions of the Board and the
Compensation Committee with respect to the Policy.
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. 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 and the Trust agrees that the Corporate
Interest shall be repaid in installments of $7,635 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 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.
2. Acknowledgement. Trustee of the Trust 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, Trustee of the Trust shall take no action seeking additional
benefits under Section 5.10 of the SDA.
3. 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 Executive to honor and
fulfill its responsibilities and agreements under this Agreement.
4. Interpretation. This Agreement shall be subject to and shall be
construed under the laws of the State of Ohio.
5. 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.
6. 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.
7. Successors. This Agreement shall inure to the benefit of and be
binding upon Manor Care, the Company, HCRA and their successors and assigns.
Manor Care 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. This Agreement shall
be binding upon and inure to the benefit of the Trust, any successor to Trustee
of the Trust and/or any successor or assigns of the Trust, including the
beneficiaries of the Trust.
TRUSTEE MANOR CARE, INC.
By: ___________________________ By: ________________________________
Name: ___________________________ Its: ________________________________
Its: ___________________________
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HEARTLAND EMPLOYMENT SERVICES, INC.
By: ________________________________
Its: ________________________________
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
By: ________________________________
Its: ________________________________
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