EXHIBIT 10.4
FORM OF SPLIT DOLLAR ASSIGNMENT TERMINATION AGREEMENT
This SPLIT DOLLAR ASSIGNMENT TERMINATION AGREEMENT ("Termination
Agreement") by and between Health Care and Retirement Corporation of America
("Company"), Manor Care, Inc. ("Manor Care"), Heartland Employment Services,
Inc. ("HES"), ______________ ("Employee") and __________________________ as
Trustee ("Trustee") and Paul A. Ormond, and M.P. Weikel, under a certain
Irrevocable Trust Agreement dated __________________ between Employee as grantor
and ___________________________ as Trustee ("Trust Agreement"), is effective
December 16, 2003.
RECITALS
WHEREAS, Company and HES are direct or indirect subsidiaries of Manor
Care and serve as employer corporations for individuals providing services to or
on behalf of Manor Care and its subsidiaries and affiliated entities; and
WHEREAS, from January 1, 2000 and continuing through the present,
Employee has been employed by HES; prior to January 1, 2000 Employee was
employed by Company; and
WHEREAS, among other benefits provided to Employee by Company and HES
are executive life insurance benefits under the Supplemental Corporate
Officer-Senior Executive Life Insurance Program ("SCO-SELIP") pursuant to which
Employee is entitled to receive life insurance death benefits equal to two (2)
times salary, prior to retirement, and two (2) times final salary,
post-retirement (the "SCO - SELIP Benefits"); and
WHEREAS, Company and HES elected to fund their obligations under the
SCO-SELIP through collateral assignment split dollar life insurance arrangements
("CASD") pursuant to which each participant under the SCO-SELIP or an
irrevocable trust created by the participant became the owner of life insurance
policies subject to a collateral assignment to Company of a corporate interest
equal to the amount of premiums paid by Company or HES; the CASD policies were
designed to generate cash value such that at the participant's retirement the
policies would have generated sufficient cash value to provide the SCO-SELIP
Benefits without payment of additional premiums; and
WHEREAS, Company, Employee and Trustee entered into a Split Dollar
Assignment Insurance Agreement dated __________________ ("SDA") pursuant to
which Employee and Trustee granted Company the right to receive the corporate
interest from the life insurance policy(ies) supporting the SCO-SELIP
obligations of Company (the "Policy") and Company agreed to pay the premiums on
the Policy, with all such premium payments being referred to as the "Corporate
Interest"; and
WHEREAS, Trustee is and has always been the owner and the beneficiary
of the Policy under the Trust Agreement; and
WHEREAS, Section 5.10 of the SDA provided that in the event of a change
in control, as defined in the SDA, Company would be required to release a
portion of its Corporate Interest in the Policy and, if necessary, provide a
gross-up payment to the Employee for any income taxes payable on such transfer;
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 CASD arrangement 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 order to comply with the potential prohibition of continued
premium payments by the Sarbanes-Oxley Act, Company discontinued premium
payments under the SDA; 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 cash value in the Policy to become taxable to the Employee at
retirement; and
WHEREAS, IRS Notice 2002-8 established a "safe harbor" so that if the
SDA is terminated prior to January 1, 2004 the cash value of the Policy will not
be taxable to Employee at the time of such termination; and
WHEREAS, the provisions of Sarbanes-Oxley and the IRS regulations and
notices referenced above, have impacted the original design of the SCO-SELIP so
as to reduce the advantages and benefits of the CASD arrangements for both
Company and the participants; 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 Act
and the IRS regulations and notices referenced above; and
WHEREAS, in view of the recommendations of Watson Wyatt, the
Compensation Committee has approved the termination of the SDA pursuant to
Section 4.1(c) thereof on the terms and conditions stated herein; and
WHEREAS, in light of the potential adverse tax consequences of
continuing the SDA, the Employee and Trustee also desire to terminate the SDA
pursuant to Section 4.1(c) thereof on the terms and conditions stated herein.
2
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. Termination of SDA. The parties agree, pursuant to Section 4.1(c),
that the SDA shall terminate effective December 16, 2003. Except as provided in
this Termination Agreement, upon termination of the SDA, Company shall have no
further obligations under the SDA to make premium payments on the Policy.
2. Waiver and Return of Corporate Interest. Upon termination of the
SDA, Manor Care, HES and Company waive their rights to that portion of the
Corporate Interest to the extent that the cash value of the Policy is sufficient
to sustain the Policy with a death benefit equal to two (2) times Employee's
annual salary as of the date hereof ("Termination Death Benefit"), without
payment of any additional premiums. Any portion of the Corporate Interest that
is in excess of the amount necessary to sustain the Policy equal to the
Termination Death Benefit, without any additional payment of premiums on the
Policy, shall be distributed to Manor Care as soon as practicable after the
effective date of this Termination Agreement and Manor Care, HES and Company
shall thereafter have no further Corporate Interest in the Policy. Manor Care,
HES and Company shall execute a Release of Collateral Assignment with respect to
the Policy in substantially the form attached hereto as Exhibit A, with respect
to the amount of the Corporate Interest waived by Manor Care, HES and Company
pursuant to this Termination Agreement. Employee acknowledges that he will be
deemed to have ordinary income equal to the amount of the Corporate Interest
waived by Manor Care, HES and Company under this Termination Agreement.
3. Supplemental Payment For Future Premiums and Gross-Up. HES agrees
that following termination of the SDA, and so long as Employee remains an
employee of HES or any successor corporation designated by Manor Care, then
Employee is entitled to receive a supplemental payment from HES or any successor
corporation designated by Manor Care in an amount such that after payment of all
federal, state and local income taxes and Medicare taxes imposed on the
supplemental payment, Employee retains an amount of the payment sufficient to
pay premiums on the Policy in the amount necessary to (i) provide a cash value
of the Policy necessary to sustain the Policy equal to the Termination Death
Benefit, in the event that the waiver of the Corporate Interest under Paragraph
2 of this Termination Agreement was not sufficient to provide such benefits;
(ii) increase the death benefits available under the Policy to account for
future salary increases of Employee so that the Policy will be sufficient to
provide an amount equal to the SCO-SELIP Benefit; and (iii) maintain the death
benefits available under the Policy in the event of any shortfalls under the
Policy.
4. Gross-Up Payment on Waiver of Corporate Interest. HES agrees to make
an additional payment to Employee, within 30 days following the date hereof, in
an amount such that after payment of all federal, state and local income taxes
and Medicare taxes imposed on the payment, Employee retains an amount of the
payment sufficient to pay the personal income tax and Medicare tax liability
Employee will incur as a result of the income received, on the waiver of the
Corporate Interest required by Paragraph 2 of this Termination Agreement.
3
5. Acknowledgment. Employee and Trustee acknowledge and agree that
Manor Care, Company and HES by complying with the terms of this Termination
Agreement will have fulfilled all obligations of Company under the SDA and so
long as Manor Care, Company and HES perform their obligations under this
Termination Agreement, Employee and Trustee shall take no other action seeking
additional benefits under the SDA; provided, however, that Company agrees that
following execution of this Termination Agreement, it will undertake in good
faith to evaluate with Employee the best alternatives to providing the
originally anticipated value in the Policy on an after-tax basis (including
payment of any gift taxes as may be due) and will implement such alternative as
deemed by the Compensation Committee of Manor Care to be in the best interests
of Manor Care consistent with the original commitment to Employee regarding the
after-tax benefits of the CASD arrangement related to the SCO-SELIP, which may
include in Manor Care's discretion, the reimbursement of gift taxes imposed on
the waiver of the Corporate Interest required by Paragraph 2, on the
supplemental payments required by Paragraph 3, on any gross-up payment made to
Employee under Paragraphs 3 and 4 and on Employee's portion of the cash value of
the Policy, plus a gross-up of all income taxes on such reimbursement.
6. Amendment and Termination This Termination Agreement shall not be
modified or amended except by a written agreement of the parties to this
Termination Agreement. This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto, their successors and assigns and their
respective trustees, officers, directors, shareholders, affiliates, subsidiaries
and their successors and assigns.
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 Termination Agreement.
Manor Care shall cause Company, HES or any successor employer of Employee to
honor and fulfill its responsibilities and agreements under this Termination
Agreement.
8. Interpretation. This Termination Agreement shall be subject to and
shall be construed under the laws of the State of Ohio.
9. 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 Termination Agreement.
10. Counterparts. This Termination 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 Termination Agreement.
11. Amendment to Employment Agreement. This Termination Agreement shall
constitute an amendment to any current Employment Agreement previously entered
into by the parties and shall be incorporated into and made a part of such
Employment Agreement.
12. Successors. This Termination Agreement shall inure to the benefit
of and be enforceable by the Employee's legal representatives. This Termination
Agreement shall inure to the benefit of and be binding upon Manor Care, Company,
HES and Trustee and their successors
4
and assigns. Manor Care shall require any successor to all or substantially all
of the business and/or assets of Manor Care, Company or HES, whether direct or
indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, expressly to assume and agree to perform this Termination Agreement
in the same manner and to the same extent as Manor Care, Company or HES would be
required to perform if no such succession had taken place.
IN WITNESS WHEREOF, the parties hereby execute this Termination
Agreement as of the date first written above.
Employee: Health Care and Retirement
Corporation Of America:
_________________________________ By: _______________________________
Name: Wade B. O'Brian
Its: Vice President
Trustee Heartland Employment Services, Inc.
By: ___________________________ By: _______________________________
Name: ___________________________ Name: Wade B. O'Brian
Its: ___________________________ Its: Vice President
Manor Care, Inc.
By: _______________________________
Name: R. Jeffrey Bixler
Its: Vice President
5