EXHIBIT 10.22
FIRST AMENDMENT TO SEVERANCE AGREEMENT
This FIRST AMENDMENT TO SEVERANCE 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, 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, on August 20, 1999 HCRA, Manor Care and Employee entered into a
Severance Agreement ("Severance Agreement") pursuant to which HCRA agreed to
provide Employee with certain severance benefits upon termination of his
employment following a change in control of Manor Care (as defined in the
Severance Agreement), including but not limited to, fully funding the SERP
Benefit and giving Employee additional service and earnings
credits for determining the amount of the SERP Benefits, as well as making
certain assumptions regarding timing of payment of the SERP Benefit; 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
Severance Agreement), then upon commencement of the SERP Benefits in accordance
with the provisions of the SERP (as modified by Section 8 of the Severance
Agreement), 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 Employee in such
amount as is necessary
2
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 First Amendment, Employee agrees that
Paragraphs 13(a)-13(c) of the Severance 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 Severance 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.
3
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: Geoffrey G. Meyers
Its Executive Vice President
4