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EXHIBIT 10.8
THE BEVERLY ENTERPRISES, INC.
EXECUTIVE LIFE INSURANCE PLAN
SPLIT DOLLAR AGREEMENT
Agreement made this ____ th day of ______ , 19 ____, by and
between Beverly Enterprises, Inc. (the "Corporation"), The Irrevocable Trust For
the Beverly Enterprises, Inc. Executive Benefits Plans, an irrevocable grantor
trust created by a Trust Agreement dated as of 18th day of July, 1995, by and
between the Corporation and Chemical Bank as Trustee (the "Rabbi Trust"),
COVERED EXECUTIVE, the insured under the below-described Policy (the
"Executive"), and The COVERED EXECUTIVE Insurance Trust (the "Policyowner").
BECAUSE COVERED EXECUTIVE (the "Executive") wishes to establish a life
insurance program for his benefit and protection under Policy Number 23059270
(the "Policy") issued by Pacific Mutual Life Insurance Company, (the "Company");
and
BECAUSE the Corporation wishes to help the Executive provide the
insurance by payment of premiums due on the Policy in accordance with the
provisions of this Agreement; and
BECAUSE the Policyowner will be the sole owner and beneficiary of the
Policy, and the Policy will be collaterally assigned to the Rabbi Trust for the
sole purpose of providing the security for the repayment of the amounts which
the Corporation will contribute toward the premiums due on the Policy; and
BECAUSE it is the desire of the parties to define the extent of the
Rabbi Trust's security interest in the cash surrender value of the Policy.
NOW THEREFORE, THE FOLLOWING IS AGREED TO BY THE PARTIES:
1. PREMIUM PAYMENT METHOD. During the Executive's employment with the
Corporation, the Corporation, on behalf of the Policyowner, shall pay directly
to the Company the required premiums including the economic benefit (hereinafter
defined), as of the date of issue and upon each subsequent premium due date. For
purposes hereof, the cost of the current life insurance protection (the
so-called "economic benefit"), shall be as calculated each year in accordance
with the Internal Revenue Service rulings. Upon termination of employment or
retirement of the Executive, the Corporation shall continue to pay said premiums
on the vested portion of the Policy for the remainder of the Executive's life,
or, if sooner, until the Policy is surrendered.
With respect to the nonvested portion of the Policy, after his
termination of employment, the Executive may retain such coverage in force by
timely paying the entire premiums thereon each premium due date (either directly
to the Company or through the Corporation, as the Corporation shall determine).
Alternatively, the Executive may purchase the entire nonvested portion of the
Policy by paying the Corporation, within 90 days of his termination of
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employment, the cash value of the nonvested portion thereof, and thereafter the
Executive may keep the Policy in force by paying the premiums due thereon. If
the Executive does not keep the nonvested portion of the Policy in force after
the termination of his employment as provided above, then that portion of the
Policy shall lapse, unless the Corporation, on its own behalf, continues to pay
the premiums thereon, in which case the Corporation shall have the sole right to
any cash value, death proceeds, or other benefits thereunder.
2. POLICYOWNER'S RIGHTS TO BORROW OR WITHDRAW. The Policyowner shall
have no right to borrow against or make withdrawals from the Policy. At all
times the Policyowner's rights in the Policy shall be limited to its vested
benefit as defined hereunder. The Policyowner shall have no right to the cash
value of the Policy other than its vested interest therein upon surrender of the
Policy, which shall only be permitted upon or after the termination of the
Executive's employment or retirement from the Corporation, and only then to the
extent permitted herein.
3. COLLATERAL ASSIGNMENT. Policyowner hereby assigns the Policy,
including its entire cash value, to the Rabbi Trust as collateral to secure the
Rabbi Trust's and/or Corporation's reimbursement rights against the Policyowner
for (i) premium advances paid by the Corporation and (ii) any nonvested interest
in the Policy retained by the Rabbi Trust and/or Corporation.
4. CORPORATION'S LOAN AND WITHDRAWAL RIGHTS. The Corporation shall have
no right to obtain policy loans from the Company or make withdrawals from the
Policy.
5. DEATH PROCEEDS. (a) Except as provided in (b) below, in the event of
the death of the Executive while the Policy and this Agreement are in force, the
proceeds of the Policy (or the remaining portion of the Policy, if any portion
has previously lapsed or been forfeited or canceled) shall be divided into two
parts and paid by the Company as follows:
The Corporation shall be entitled to an amount equal to the cumulative
premiums paid (which purchased additional death benefits under the
Policy).
The Policyowner (or other named beneficiary) shall be entitled to an
amount equal to the remainder of such death proceeds.
(b) In the event of the death of the Executive while he is no longer
actively employed by the Corporation (and while the Policy and this Agreement
are in force), if the Executive was not 100 percent vested hereunder upon his
termination of employment, and if after his termination of employment, the
Executive did not elect to either purchase or continue paying premiums on the
nonvested portion of the Policy, but the Corporation nevertheless continued to
pay such premiums on its own behalf (as opposed to letting such nonvested
portion of the Policy lapse), then the proceeds of the Policy shall be divided
in two parts and paid by the Company as follows:
The nonvested portion of the Policy shall be paid to the Corporation.
The vested portion of the Policy shall be further divided into two
parts and paid by the Company as follows:
The Corporation shall be entitled to an amount equal to the cumulative
premiums paid (which purchased additional death benefits under the
Policy).
The Policyowner (or other named beneficiary) shall be entitled to an
amount equal to the remainder of such death proceeds.
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(c) Any interest due upon the death proceeds, or other elements of
value in the Policy, payable upon death shall be shared by the Corporation and
the Policyowner (or other named beneficiary) in the same ratio as the death
proceeds are shared.
6. DIVISION OF CASH SURRENDER VALUE. (a) Neither the Policyowner nor
the Executive shall have any right to surrender the Policy during the
Executive's employment with the Corporation (or any affiliate, successor, or
assign thereof) without the Corporation's consent. After the Executive's
termination of employment, unless the Corporation consents otherwise, the
Policyowner shall only have the right to surrender the nonvested portion of the
Policy, and only then if the Policyowner first purchases such nonvested portion
by paying the Corporation the full cash value thereof. Unless the Corporation
consents otherwise, at no time shall the Policyowner (or Executive) have any
surrender or cash value rights with respect to the vested portion of the Policy.
(b) Upon the Executive's termination of employment, the nonvested
portion of the Policy shall lapse and the cash value thereof shall be paid to
the Rabbi Trust, unless either (i) the Policyowner keeps the nonvested portion
in force by paying the premiums thereon each premium due date, (ii) the
Policyowner purchases the nonvested portion by paying the Corporation, within 90
days of the Executive's termination of employment, the cash value thereof, or
(iii) the Corporation voluntarily keeps the nonvested portion in force by
continuing to pay the premiums thereon on its own behalf, in which case it shall
have all future rights to the cash value upon any subsequent surrender thereof.
Upon the Executive's termination of employment, the Corporation shall continue
to pay the premiums on the vested portion of the Policy (for the remainder of
the life of the Executive or, if earlier, until the Policy is surrendered), and
neither the Executive nor Policyowner shall have any surrender rights or rights
to the cash value thereof, unless the Corporation otherwise consents thereto.
(c) To the extent the Policy, in whole or in part, is canceled, lapses,
or is surrendered, the Rabbi Trust shall be entitled to an amount equal to the
sum of (i) the cash value attributable to the nonvested portion of the Policy
(unless the Policyowner has previously purchased such nonvested portion by
paying the Corporation the full cash value thereof within 90 days of the
Executive's termination of employment), plus (ii) with respect to the vested
portion of the Policy, an amount equal to the cumulative premium advances
extended to the Policyowner; in turn the Policyowner shall be entitled to any
remainder of such cash value.
7. ASSIGNMENT AND BENEFICIARY RIGHTS. Subject to the limitations
specified herein, including the Rabbi Trust's collateral assignment, the
Policyowner may, at any time, assign to any individual, trust or other
organization all of the Policyowner's right, title and interest in the Policy
and all of the Policyowner's rights, options, privileges and duties created by
this Agreement, except as provided below.
The Policyowner may, subject to the assignment above, designate a
beneficiary or beneficiaries to receive any proceeds payable upon the insured's
death, which exceed the amount of proceeds payable to the Corporation and/or
Rabbi Trust.
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However, the Policy shall not be subject to the debts or liabilities of
the Executive or Policyowner (other than the collateral assignment) and in
connection therewith the Policy shall not be subject to attachment, assignment,
alienation, garnishment, execution, levy, anticipation, charge, pledge,
encumbrance, transfer or sale.
8. PREMIUM WAIVER. If the Policy contains a premium disability waiver
provision, any premium waiver shall be considered for purposes of this Agreement
as having been paid by the Policyowner.
9. VESTING UNDER THE POLICY. The Executive shall vest in the Policy
pursuant to the following vesting schedule:
Once an Executive reaches age 50, he/she is vested in 10% of his/her
benefit. Furthermore, the Executive shall vest an additional 10% each
year thereafter, with 100% vesting at age 59 assuming at least 10 years
of service.
10. AMENDMENT AND TERMINATION. Prior to a Change in Control of the
Corporation, as defined in the Rabbi Trust, the Corporation shall have the
absolute right to amend this Agreement in any manner or to terminate this
Agreement at any time, without need for consent from or advance notice to any
party. However, after a Change in Control of the Corporation, the Corporation
(or any affiliate, successor, or assign thereof) may not amend or terminate this
Agreement without the Executive's prior written consent.
11. CLAIMS PROCEDURE. This split-dollar insurance plan is a welfare
plan under the Employee Retirement Income Security Act of 1974 (ERISA). Under
this act, an Executive has certain rights and protections. His rights are set
forth in this Agreement and in the Policy.
In making a claim for benefits, the Executive or Policyowner must make
his claim on a form acceptable to the Corporation and the Company. The plan
administrator will supply him with the claim forms. The request will set forth
the basis of the Executive's claim and authorize the plan administrator and the
Company to investigate the claim and take the necessary steps to facilitate
payment of benefits.
If the Corporation or the Company denies the Executive's claim, it must
provide him with the following information in a written reply:
(a) The specific reason or reasons for the denial;
(b) Reference specific provision of the Agreement on which the
denial is based;
(c) Describe any additional material or information necessary for
him to perfect his claim; and
(d) Explain the procedure for review of claims.
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Within 60 days of a claim denial from the Corporation or the Company,
the Executive may request in writing a review of the denied claim by the
Corporation or the Company.
The Executive or his representative may, in asking for the review: (a)
review pertinent documents, and (b) submit issues and comments in writing.
On receipt of the request for review, the Corporation or the Company,
as the case may be, shall within 60 days (or 120 days if additional time is
needed), deny or grant the claim. The decision shall be made in writing and in a
manner calculated to be understood by the Executive. It also shall include
specific reference to pertinent provisions on which the denial is based. The
Corporation and Company shall have complete fiduciary discretion and authority
to interpret the Policy and this Agreement, decide all questions of eligibility
and benefits, and adjudicate all claims and appeals.
12. ADDITIONAL RIGHTS AND PROTECTIONS. After review, if the Executive
feels he has been improperly denied a claim for benefits, he has the right to
file suit in federal or state court. If he is successful in his lawsuit, the
court may, if it so decides, require the other party to pay legal costs,
including attorney's fees.
The Corporation may not fire or discriminate against the Executive for
exercising his rights under ERISA.
If the Executive has any questions about this split-dollar Agreement,
he should contact the Corporation's Senior Director of Benefits Administration.
The Company is the plan administrator, named fiduciary and agent for service of
process of this plan. Under the law, fiduciaries must act solely in the
interests of plan participants while exercising prudence in the performance of
their plan duties. If the Executive has any questions about his rights under
ERISA, he should contact the Corporation's Senior Director of Benefits
Administration or the nearest office of the Labor-Management Service
Administration, Department of Labor.
13. PREMIUM FUNDING UPON CHANGE IN CONTROL. Immediately prior to any
Change in Control of the Corporation, as defined in the Rabbi Trust, the
Corporation shall transfer to the Rabbi Trust sufficient assets to fully fund
the Policy to a level where the cash surrender value will be adequate to fully
endow the Policy at age 100, assuming the Policy's minimum guaranteed interest
rate and maximum mortality charges and assuming no future premium payments.
14. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT. The Company shall
not be deemed a party to this Agreement, but will respect the rights of the
parties as provided herein upon the receipt by the Company of an executed copy
of this Agreement.
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The parties have executed this Agreement effective on the date first written
above.
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COVERED EXECUTIVE, Executive
By: Trustee
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SIGNATOR FOR TRUSTEE
Its: Vice President
By: Beverly Enterprises, Inc
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Robert. W. Pommerville
Its: Executive Vice President
General Counsel and Secretary
By: Chase Manhattan Bank, Trustee
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Catherine Platt, Vice President
770 Broadway
10th Floor
New York, NY 10003
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