EXHIBIT 10.21
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT ("First Amendment") by and
between, Manor Care, Inc. ("Manor Care"), Heartland Employment Services, Inc.
("Company"), Health Care and Retirement Corporation of America ("HCRA") and
______________ ("Employee") is effective December 16, 2003.
RECITALS
WHEREAS, on ______________(date), HCRA and Employee entered into an
employment agreement ("Employment Agreement") pursuant to which Employee was
employed by HCRA to provide services for or on behalf of Manor Care and its
direct and indirect subsidiaries on the terms and conditions, including
compensation and benefits, stated therein; and
WHEREAS, effective January 1, 2000, Company assumed HCRA's obligations
under the Employment Agreement; and
WHEREAS, among other benefits provided to Employee under the Employment
Agreement, Employee 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 then adopted by Manor Care and then 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 arrangements; and
WHEREAS, Employee entered into a Split Dollar Assignment Insurance
Agreement ("SDA") with HCRA, pursuant to which the Employee became the owner of
certain life insurance policy(ies) (the "Policy") which was designed to generate
cash value sufficient to fund the Employee'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 in the cash value of the Policy; and
WHEREAS, Section 5.10 of the SDA provided 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 Employee
was projected to receive at retirement including, if necessary, releasing a
portion of its corporate interest in the Policy and, to the extent applicable,
providing a gross-up payment to the Employee to cover any income taxes payable
by the Employee 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, the provisions of the Sarbanes-Oxley 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 the Employee; and
WHEREAS, in September, 2003 the Internal Revenue Service adopted
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 the Employee
at retirement; and
WHEREAS, the provisions of Sarbanes-Oxley and the IRS regulations
referenced above, have impacted the original design of the SDA so as potentially
to reduce the advantages and benefits of the Policy for the Employee; and
WHEREAS, the Compensation Committee of the Manor Care Board of
Directors has received and reviewed the recommendations of its consulting firm,
Watson Wyatt, regarding the implementation of Section 5.10 of the SDA, as well
as Watson Wyatt's recommendation regarding the provisions of Sarbanes-Oxley and
the IRS regulations referenced above; and
WHEREAS, the Compensation Committee, having fully reviewed the impact
of Section 5.10 of the SDA, the provisions of Sarbanes-Oxley and the IRS
regulations referred to above, and in view of the recommendations of Watson
Wyatt has approved actions designed to implement the requirements of Section
5.10 and to mitigate the impact of the changes in tax treatment of the SDA; and
WHEREAS, the Company, Manor Care, HCRA and Employee desire to enter
into this First Amendment for the purpose of documenting the actions of the
Compensation Committee with respect to Employee's SERP Benefit and Employee'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. In the event of (i) Employee's termination of
employment with the Company by reason of death; (ii) Employee's retirement on or
after Early Retirement (as defined in the SERP), or (iii) termination of
Employee's employment by the Company for reasons other than Cause (as defined in
the Employment Agreement), then upon commencement of the SERP Benefits in
accordance with the provisions of the SERP, HCRA, Manor Care and the Company
agree that they will waive and release that portion, or all, of their Corporate
Interest (as defined in the SDA) in the Policy to the extent that the remaining
cash value of the Policy shall equal the lump sum value of the SERP Benefit, but
shall retain their Corporate Interest in any cash value of the Policy that
exceeds the lump sum value of the SERP Benefit. In the event that after release
of the Corporate Interest, the cash value in the Policy is less than the lump
sum value of the SERP Benefit, the Company shall provide a cash payment to
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Employee in such amount as is necessary to make up the difference between the
lump sum value of the SERP Benefit and the cash value of the Policy after the
release of the Corporate Interest. Such payment shall be made within sixty (60)
days of commencement of the Employee's benefit under the SERP. If Employee's
employment is terminated for Cause at anytime, then HCRA, Manor Care and the
Company shall retain their full corporate interest and Employee shall not be
entitled to any of the benefits set forth in Paragraphs 1, 2 or 3 of this First
Amendment.
2. Gross-Up Payment on Release of Corporate Interest and
Shortfall Payment. The Company agrees to make an additional payment to Employee
("Gross-Up Payment A"), within 60 days of the commencement of Employee's
benefits under the SDA, in an amount such that after payment of all federal,
state and local income taxes imposed on Gross-Up Payment A, Employee retains an
amount of Gross-Up Payment A sufficient to pay all the income tax payments which
Employee will be required to pay on the release of the Corporate Interest and
shortfall payments required by Paragraph 1 of this First Amendment.
3. Gross-Up Payment on Employee Interest. In addition to payments
required by Paragraphs 1 and 2 hereof, in the event of (i) Employee's
termination of employment with the Company by reason of death; (ii) Employee's
retirement on or after Early Retirement , or (iii) termination of Employee's
employment by the Company, for reasons other than Cause, the Company agrees to
make an additional payment to Employee ("Gross-Up Payment B"), within 60 days of
Employee's commencement of SERP Benefits under the SDA, in an amount such that
after payment of all federal, state and local income taxes imposed on Gross-Up
Payment B, Employee retains an amount of Gross-Up Payment B sufficient to pay
all income tax payments which Employee will be required to pay on the Employee's
retained interest in the cash value of the Policy in excess of the amount of the
Corporate Interest waived under Paragraph 1.
4. Non-Competition/Non-Solicitation. In consideration of the
benefits to be provided by Paragraphs 1, 2 and 3 of this Agreement, Employee
agrees that Paragraphs 7(a)-7(c) of the Employment 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. Employee acknowledges and agrees that Manor
Care, the Company and HCRA by complying with the terms of this amendment will
have fulfilled all obligations of HCRA under Section 5.10 of the SDA, and so
long as Manor Care and Company perform their obligations under this Amendment,
Employee 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 Employment 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 First
Amendment. Manor Care shall cause the Company, HCRA or any successor employer of
the Employee to honor and fulfill its responsibilities and agreements under this
First Amendment.
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8. Interpretation. This First Amendment shall be subject to and
shall be construed under the laws of the State of Ohio.
9. Headings. Any headings or captions in this First Amendment are
for reference purposes only, and shall not expand, limit, change or affect the
meaning of any provision of this First Amendment.
10. Counterparts. This First Amendment 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 First Amendment.
11. Successors. This First Amendment shall inure to the benefit of
and be enforceable by the Employee's legal representatives. This First Amendment
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 First Amendment 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.
EMPLOYEE: HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
By:_________________________________
Name: Wade B. O'Brian
Its: Vice President
HEARTLAND EMPLOYMENT SERVICES, INC.
By:_________________________________
Name: Wade B. O'Brian
Its Vice President
MANOR CARE, INC.
By:_________________________________
Name: R. Jeffrey Bixler
Its Vice President
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