AMENDED AND RESTATED ADOPTION AGREEMENT
Exhibit
99.2/ Amended and Restated Option Agreement adopted May 17,
2006.
 |
Principal
Life Insurance Company Xxxxxxx, XX 00000 1-800-999-4031
A
member of the Principal Financial
Group®
|
THE
EXECUTIVE
NON QUALIFIED “EXCESS” PLANSM |
AMENDED
AND RESTATED
ADOPTION AGREEMENT
ADOPTION AGREEMENT
THIS
AGREEMENT is the adoption by ProAssurance
Group Services Corporation (the
“Employer”) of the Executive Nonqualified Excess Plan (“Plan”).
W
I T N
E S S E T H:
WHEREAS,
the Employer desires to adopt the Plan as an unfunded, nonqualified deferred
compensation plan; and
WHEREAS,
the provisions of the Plan are intended to comply with the requirements of
Section 409A of the Code and the regulations thereunder, and shall apply
to
amounts deferred after January 1, 2005, and to amounts deferred under the
terms
of any predecessor plan which are not earned and vested before January 1,
2005;
and
WHEREAS,
the Employer has been advised by Principal Life Insurance Company to obtain
legal and tax advice from its professional advisors before adopting the Plan,
and Principal Life Insurance Company disclaims all liability for the legal
and
tax consequences which result from the elections made by the Employer in
this
Adoption Agreement;
NOW,
THEREFORE, the Employer hereby adopts the Plan in accordance with the terms
and
conditions set forth in this Adoption Agreement:
ARTICLE
I
Terms
used
in this Adoption Agreement shall have the same meaning as in the Plan, unless
some other meaning is expressly herein set forth. The Employer hereby represents
and warrants that the Plan has been adopted by the Employer upon proper
authorization and the Employer hereby elects to adopt the Plan for the benefit
of its Participants as referred to in the Plan. By the execution of this
Adoption Agreement, the Employer hereby agrees to be bound by the terms of
the
Plan.
ARTICLE
II
The
Employer hereby makes the following designations or elections for the purpose
of
the Plan:
2.6
Committee:
The
duties
of the Committee set forth in the Plan shall be satisfied by:
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XX
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(a)
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The
administrative committee of at least three individuals appointed
by the
Board to serve at the pleasure of the Board.
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(b)
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Employer.
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(c)
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Other
(specify):_______________________________________________.
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2.7
Compensation:
The
“Compensation” of a Participant shall mean all of a Participant’s:
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XX
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(a)
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Base
salary.
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(b)
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Service
Bonus.
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(c)
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Performance-Based
Compensation earned in a period of 12 months or
more.
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(d)
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Commissions.
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XX
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(e)
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Compensation
received as an Independent Contractor reportable on Form
1099.
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(f)
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Other:______________________________________________________.
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2.8 Crediting
Date: The
Deferred Compensation Account of a Participant shall be credited with the
amount
of any Participant Deferrals to such account at the time designated
below:
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(a)
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The
last business day of each Plan Year.
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(b)
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The
last business day of each calendar quarter during the Plan
Year.
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(c)
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The
last business day of each month during the Plan Year.
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(d)
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The
last business day of each payroll period during the Plan
Year.
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(e)
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Each
pay day as reported by the Employer.
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XX
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(f)
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Any
business day on which Participant Deferrals are received by the
Provider.
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(g)
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Other:_______________________________________________________.
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2
2.12
Effective Date:
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(a)
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This
is a newly-established Plan, and the Effective Date of the Plan
is___________________
.
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XX
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(b)
|
This
is an amendment and restatement of a plan named The
Executive Nonqualified
Excess Plan of ProAssurance Group with
an effective date of January
1, 2005.
|
| The Effective Date of this amended and restated Plan is January 1, 2005. This is restatement number 1. |
2.18
Normal Retirement Age: The
Normal
Retirement Age of a Participant shall be:
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(a)
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Age
___.
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(b)
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The
later of age ___or the ___ anniversary of the participation commencement
date. The participation commencement date is the first day of the
first
Plan Year in which the Participant commenced participation in the
Plan.
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XX
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(c)
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Other:
Age
55 and 5 Years of Service.
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2.22
Participating Employer(s): As
of the
Effective Date, the following Participating Employer(s)
are parties to the Plan:
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Name
of Employer
|
Address
|
Telephone
No.
|
EIN
|
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|
ProAssurance
Group Services
Corporation
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
|
||||
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ProAssurance
Corporation
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
The
Medical Assurance
Company,
Inc.
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
Woodbrook
Casualty
Insurance
Company, Inc.
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
IAO,
Inc. dba Mutual
Assurance
Agency
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
3
|
Name
of Employer
|
Address
|
Telephone
No.
|
EIN
|
|
|
ProNational
Insurance
Company |
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
Red
Mountain Casualty
Insurance
Company, Inc.
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
|
|
|
|
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NCRIC,
Inc.
|
000
Xxxxxxxxx Xxxxx,
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
(205)
|
877-4400
|
00-0000000
|
|
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2.24
Plan: The
name
of the Plan as applied to the Employer is The
Executive Nonqualified Excess
Plan of ProAssurance Group.
2.25
Plan Administrator: The
Plan
Administrator shall be:
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(a)
|
Committee.
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XX
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(b)
|
Employer.
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(c)
|
Other:_______________________________________________.
|
2.27
Plan Year: The
Plan
Year shall end each year on the last day of the month of December.
2.35
Trust:
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XX
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(a)
|
The
Employer does
desire to
establish a “rabbi” trust for the purpose of setting
aside assets of the Employer contributed thereto for the payment
of
benefits under the Plan.
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(b)
|
The
Employer does
not desire to
establish a “rabbi” trust for the purpose of
setting aside assets of the Employer contributed thereto for
the
payment
of
benefits under the Plan.
|
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(c)
|
The
Employer desires to establish a “rabbi” trust for the purpose of setting
aside assets of the Employer contributed thereto for the payment
of
benefits under the Plan upon
the occurrence of a Change in
Control.
|
4
4.1
Participant Deferral Credits: Subject
to
the limitations in Section 4.1 of the Plan, a Participant may elect to have
his
Compensation (as selected in Section 2.7 of this Adoption Agreement) deferred
within the annual limits below by the following percentage or amount as
designated in writing to the Committee:
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XX
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(a)
|
Base
salary:
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minimum
deferral: $ __________or 1 %
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maximum
deferral: $ __________or 75
%
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(b)
|
Service
Bonus:
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maximum
deferral: $ ________or________ %
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(c)
|
Performance-Based
Compensation:
|
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maximum
deferral: $________ or________ %
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XX
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(d)
|
Other:
1099 Income:
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|
minimum
deferral $1,000 or ____________ %
|
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maximum
deferral: $250,000 or _________ %
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(e)
|
Participant
deferrals not allowed.
|
5
4.2 Employer
Credits: The
Employer will make Employer Credits in the following manner:
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XX
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(a)
|
Employer
Discretionary Credits:
The
Employer may make discretionary credits to the Deferred Compensation
Account of each Participant in an amount determined as
follows:
|
||
| (i) An amount determined each Plan Year by the Employer | ||||
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XX
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(ii) Other: See Attached Exhibit B. | ||
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(b)
|
Employer
Profit Sharing Credits: The Employer may make profit sharing
credits to
the Deferred Compensation Account of each Active Particpant in
an amount
determined as follows:
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|
(i)
An
amount determined each Plan Year by the Employer.
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(ii)
Other:
_____________________________________________________.
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(c)
|
Other:________________________________________________________.
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(d)
|
Employer
Credits not allowed.
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||
5.3
Death of a Participant: If
the
Participant dies while in Service, the Employer shall pay a benefit to the
Beneficiary in an amount equal to the vested balance in the Deferred
Compensation Account of the Participant determined as of the date payments
to
the Beneficiary commence, plus:
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(a)
|
An
amount to be determined by the Committee.
|
|
(b)
|
Other:_______________________________________________.
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XX
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(c)
|
No additional benefits. |
6
5.4 In-Service
Distributions: In-service
accounts are permitted under the Plan:
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(a)
|
Yes,
with respect to:
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Participant
Deferral Credits only.
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Employer
Credits only.
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Participant
Deferral and Employer Credits.
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In-service
distributions may be made in the following manner:
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Single
lump sum payment.
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Annual
installment payments over no more than______years.
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If
applicable, amounts not vested at the specified time of distribution
will
be:
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| Forfeited | ||||
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Distributed
annually when vested
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XX
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(b)
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No
in-service distributions
permitted.
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5.5
Education
Distributions: Education
accounts are permitted under the Plan:
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(a)
|
Yes,
with respect to:
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Participant
Deferral Credits only.
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Employer
Credits only.
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Participant
Deferral and Employer Credits.
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Education
distributions may be made in the following manner:
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Single
lump sum payment.
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Annual
installment payments over no more than______years.
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If
applicable, amounts not vested at the specified time of distribution
will
be:
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| Forfeited | ||||
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Distributed
annually when vested
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XX
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(b)
|
No education
distributions permitted.
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5.6
Change
in Control: Participant
may elect to receive distributions under the Plan upon a Change in
Control:
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XX
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(a)
|
Yes,
Participants may elect upon initial enrollment to have accounts
distributed upon a Change in Control.
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(b)
|
Participants
may not elect to have accounts distributed upon a Change in
Control.
|
7
6.1
Payment Options: Any
benefit payable under the Plan upon a Qualifying Distribution Event may be
made
to the Participant or his Beneficiary (as applicable) in any of the following
payment forms, as selected by the Participant in the Participant Deferral
Agreement:
|
1.
Separation
from Service other than Retirement (Retirement is defined by
the
Employer)
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XX
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(a)
|
A
lump sum in cash as soon as practicable following the date of
the
Qualifying Distribution Event.
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XX
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(b)
|
Approximately
equal annual installments over a term certain as elected by the
Participant upon his entry into the Plan not to exceed 10
years.
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(c)
|
Other:________________________________________________________________________.
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2.
Separation
from Service due to Retirement
|
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XX
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(a)
|
A
lump sum in cash as soon as practicable following the date of
the
Qualifying Distribution Event.
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XX
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(b)
|
Approximately
equal annual installments over a term certain as elected by the
Participant upon his entry into the Plan not to exceed 10
years.
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(c)
|
Other:
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3.
Death
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XX
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(a)
|
A
lump sum in cash as soon as practicable following the date of
the
Qualifying Distribution Event.
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XX
|
(b)
|
Approximately
equal annual installments over a term certain as elected by the
Participant upon his entry into the Plan not to exceed 10
years.
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(c)
|
Other:
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4.
Disability
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XX
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(a)
|
A
lump sum in cash as soon as practicable following the date of
the
Qualifying Distribution Event.
|
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|
XX
|
(b)
|
Approximately
equal annual installments over a term certain as elected by the
Participant upon his entry into the Plan not to exceed 10
years.
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(c)
|
Other:
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5.
Change
in Control
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XX
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(a)
|
A
lump sum in cash as soon as practicable following the date of
the
Qualifying Distribution Event.
|
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XX
|
(b)
|
Approximately
equal annual installments over a term certain as elected by the
Participant upon his entry into the Plan not to exceed 10
years.
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(c)
|
Other:
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(d)
|
Not
applicable.
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8
6.2
De Minimis Amounts. Notwithstanding
any payment election made by the Participant, the
vested
balance in the Deferred Compensation Account of the Participant will be
distributed in
a single
lump sum payment if the payment accompanies the termination of the Participant’s
entire interest in the Plan and the amount of such payment does not exceed
$
10,000.
9
7. Vesting:
An
Active
Participant shall be fully vested in the Employer Credits made to the Deferred
Compensation Account upon the first to occur of the following events:
(Effective
January 1, 2006)
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(a)
|
Normal
Retirement Age.
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(b)
|
Death.
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(c)
|
Disability.
|
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(d)
|
Change
in Control
|
|
|
(e)
|
Other:______________________________________________________.
|
|
XX
|
(f)
|
Satisfaction
of the vesting requirement specified
below:
|
|
XX
|
Employer
Discretionary Credits:
|
|||
|
|
XX
|
(i)
Immediate
100% vesting.
|
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|||
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(ii)
100%
vesting after ____Years of Service.
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|||
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(iii)
100% vesting at age______.
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|||
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(iv)
|
Number
of Years
|
Vested
|
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|
of
Service
|
Percentage
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|||
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Less
than
|
1
|
______%
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|
1
|
______%
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|
2
|
______%
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3
|
______%
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4
|
______%
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5
|
______%
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6
|
______%
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7
|
______%
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8
|
______%
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|
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9
|
______%
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|
10
or more
|
______%
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||
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For
this purpose, Years of Service of a Participant shall be calculated
from
the date
designated below:
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(1)
First
Day of Service.
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(2)
Effective
Date of the Plan Participation.
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(3)
Each
Crediting Date. Under this option (3), each Employer
|
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Credit
shall vest based on the Years of Service of a
|
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|
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|
Participant
from the Crediting Date on which each Employer
|
||
|
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|
Discretionary
Credit is made to his or her Deferred
|
||
|
|
|
Compensation
Account. Notwithstanding the vesting schedule
|
||
|
|
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elected
above, all Employer Discretionary Credits to the
|
||
|
|
|
Deferred
Compensation Account shall be 100% vested upon the
|
||
|
|
|
following
event(s):__________________________________________.
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||
10
|
|
Employer
Profit Sharing Credits:
|
|||
|
|
|
(i)
Immediate
100% vesting.
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|||
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(ii)
100%
vesting after ____Years of Service.
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||
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|||
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(iii)
100% vesting at age______.
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||
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|||
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(iv)
|
Number
of Years
|
Vested
|
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|
of
Service
|
Percentage
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|
|||
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|
Less
than
|
1
|
______%
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|
|
|
|
1
|
______%
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|
|
2
|
______%
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|
3
|
______%
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4
|
______%
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|
|
5
|
______%
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|
|
6
|
______%
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|
|
7
|
______%
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|
|
8
|
______%
|
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|
|
|
9
|
______%
|
|
|
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|
10
or more
|
______%
|
|
|
|
|
|
||
|
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|
For
this purpose, Years of Service of a Participant shall be calculated
from
the date
designated below:
|
||
|
|
|
|
||
|
|
|
(1)
First
Day of Service.
|
||
|
|
|
(2)
Effective
Date of the Plan Participation.
|
||
|
|
|
(3)
Each
Crediting Date. Under this option (3), each Employer
|
||
|
|
|
Credit
shall vest based on the Years of Service of a
|
||
|
|
|
Participant
from the Crediting Date on which each Employer
|
||
|
|
|
Credit
is made to his or her Deferred
|
||
|
|
|
Compensation
Account. Notwithstanding the vesting schedule
|
||
|
|
|
elected
above, all Employer Credits to the
|
||
|
|
|
Deferred
Compensation Account shall be 100% vested upon the
|
||
|
|
|
following
event(s):__________________________________________.
|
||
11
|
XX
|
Other
Employer Credits:
|
|||
|
|
XX
|
(i)
Immediate
100% vesting.
|
||
|
|
|
|||
|
|
|
(ii)
100%
vesting after ____Years of Service.
|
||
|
|
|
|||
|
|
|
(iii)
100% vesting at age______.
|
||
|
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|
|||
|
|
|
(iv)
|
Number
of Years
|
Vested
|
|
|
|
|
of
Service
|
Percentage
|
|
|
|
|||
|
|
Less
than
|
1
|
______%
|
|
|
|
|
1
|
______%
|
|
|
|
|
2
|
______%
|
|
|
|
|
3
|
______%
|
|
|
|
|
4
|
______%
|
|
|
|
|
5
|
______%
|
|
|
|
|
6
|
______%
|
|
|
|
|
7
|
______%
|
|
|
|
|
8
|
______%
|
|
|
|
|
9
|
______%
|
|
|
|
|
10
or more
|
______%
|
|
|
|
|
|
||
|
|
|
For
this purpose, Years of Service of a Participant shall be
calculated from
the date
designated below:
|
||
|
|
|
|
||
|
|
|
(1)
First
Day of Service.
|
||
|
|
|
(2)
Effective
Date of the Plan Participation.
|
||
|
|
|
(3)
Each
Crediting Date. Under this option (3), each Employer
|
||
|
|
|
Credit
shall vest based on the Years of Service of a
|
||
|
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|
Participant
from the Crediting Date on which each Employer
|
||
|
|
|
Credit
is made to his or her Deferred
|
||
|
|
|
Compensation
Account. Notwithstanding the vesting schedule
|
||
|
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|
elected
above, all Employer Discretionary Credits to the
|
||
|
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|
Deferred
Compensation Account shall be 100% vested upon the
|
||
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following
event(s):__________________________________________.
|
||
12
14.
Amendment and Termination of Plan: Notwithstanding
any provision in this Adoption Agreement or the Plan to the contrary,
Section
2.30,
6.1 10.1 and 17.8 of
the
Plan shall be amended to read as provided in attached Exhibit A
and
Section 4.2(a) of
the
Plan shall be amended to read as provided in attached Exhibit B.
________
There are no amendments to the Plan.
17.9
Construction: The provisions of the Plan and Trust (if any) shall be
construed and enforced according to the laws of the State of
Alabama, except to the extent that such laws are superseded by ERISA and
the applicable provisions of the Code.
IN
WITNESS
WHEREOF, this Agreement has been executed as of the day and
year
first above stated.
|
ProAssurance
Group Services Corporation
Name
of Employer
|
|
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
|
The
Plan is adopted by the following Participating
Employers:
|
|
|
|
ProAssurance
Corporation
Name of Employer |
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
|
|
The
Medical Assurance Company, Inc.
Name of Employer |
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
|
Woodbrook
Casualty Insurance Company, Inc.
Name
of Employer
|
|
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
13
| IAO, INc. dba Mutual Assurance Agency | |
|
|
Name of Employer |
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
|
|
ProNational
Insurance Company
Name
of Employer
|
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
|
|
|
|
|
Red Mountain Casualty Insurance Company, Inc. |
|
|
Name of Employer |
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
|
|
|
|
|
NCRIC, Inc. |
| Name of Employer | |
|
|
By:
|
|
|
Authorized
Person
|
|
|
Date:
|
NOTE:
Execution of this Adoption Agreement creates a legal liability
of the Employer
with significant tax consequences to the Employer and Participants.
The Employer
should obtain legal and tax advice from its professional advisors
before
adopting the Plan. Principal Life Insurance Company disclaims
all liability for
the legal and tax consequences which result from the elections
made by the
Employer in this Adoption Agreement.
14
Exhibit
A
ProAssurance
Group Executive Non-Qualified “Excess” Plan
1.
Plan
Section 2.30 shall be amended and superseded to read as follows:
2.30
“Service” means employment by the Employer as an Employee. For purposes
of the
Plan, the employment relationship is treated as continuing
intact while the
Employee is on military leave, sick leave, or other bona
fide leave of absence
if the period of such leave does not exceed six months (which
may, in the
discretion of the Committee, be extended to as much as twelve
months), or if
longer, so long as the Employee’s right to reemployment is provided by either
statute or contract. If the Participant is an Independent
Contractor, “Service”
shall mean the period during which the contractual relationship
exists between
the Employer and the Participant. The contractual relationship
is not terminated
if the Participant anticipates a renewal of the contract
or becomes an
Employee.
2.
Plan
Section 17.8 shall be amended and superseded to read as follows:1
7.8
Merger
or Consolidation; Assumption of Plan. Subject to Section
5.6, nothing herein
shall prohibit the assumption of the obligations and liabilities
of the Employer
under the Plan by any successor entity.
3.
Plan
Section 10.1 shall be amended by adding the following at
the conclusion
thereof:
The
contractual liability to pay all benefits under this Plan
is the responsibility
of ProAssurance Group Services Corporation notwithstanding
that one or more
Participants are or may have been employed by another Participating
Employer.
4.
Adoption Agreement Section 6.1 shall be amended by adding
the following at the
conclusion thereof:
Notwithstanding
the foregoing, a Participant may elect a different distribution
option with
respect to each Plan Year’s Participant Deferral Credits and Employer Credits
provided that such election is made prior to the beginning
of the Plan
Year.
15
Exhibit
B
ProAssurance
Group Executive Non-Qualified “Excess” Plan
Employer
Matching Credits
Make
Up
Matching Credits.
Effective
on and after January 1, 2005, the Employer will "make up" any matching
contributions lost by a Participant under the ProAssurance Group Savings and
Retirement Plan (the "Savings Plan") as a result of such Participant having
elected to make salary deferrals to this Plan. This will be accomplished as
follows:
In
the
event that the Participant elects to make salary deferrals to this Plan during
any calendar year and such deferrals result in the Participant not receiving
Matching Contributions to the Savings Plan that he or she otherwise would have
received in such calendar year, then, the Employer will make matching credits
to
the Deferred Compensation Account of such Participant. The amount of the
matching credit will be equal to (a) the amount of Matching Contributions that
would have been allocated to the Participant's account in the Savings Plan
for
such calendar year had salary deferrals not been made to this Plan during such
year, less (b) the amount of Matching Contributions actually allocated to the
Participant's account for such year. The determination of the amount of Matching
Contributions shall be made in accordance with the terms of the Plan in effect
for the year in question and by applying the limitation on compensation imposed
by Section 401(a)(17) of the Code. Matching credits hereunder will be made
as
soon as possible after the close of the year to which they relate.
Additional
Matching Credits.
Effective
on and after January 1, 2006, the Employer will make additional matching credits
equal to 100% of a Participant's deferrals under this Plan, but not to exceed
a
matching credit of 10% of the Participant's Compensation which is in excess
of
the compensation limit imposed by Section 401(a)(17) of the Internal Revenue
Code. For purposes hereof, "Compensation" means the total compensation of a
Participant as reflected and reported on IRS Form W-2 that is actually paid
to
the Participant for personal services rendered during the Plan Year, adjusted
as
hereinafter provided. "Compensation" will be adjusted to include the amount
of
the Participant's deferrals under this Plan and any compensation which is not
currently includible in the Participant's gross income by reason of the
application of Sections 125, 132(f)(4), 402(a)(8), 402(h)(1)(B), or 403(b)
of
the Code.
The
matching credits will be fully vested when made.
16
Exhibit
C
ProAssurance
Group Executive Non-Qualified "Excess" Plan
The
Restated and Amended ProAssurance Group 2004 Deferred Compensation Plan (the
"2004 Plan") has been merged into and with this Plan. The Deferred Compensation
Account of each Key Employee participating in the 2004 Plan shall be subject
to
the provisions of this Plan; provided, however, that in no event will the date
or time of the payment of a Key Employee's benefits under the 2004 Plan be
accelerated even if the payment date provided in the 2004 Plan or in the Key
Employee's Distribution Election under the 2004 Plan specifies a payment date
or
time which is not a permissible election under this Plan. Distribution of the
Key Employee's benefits under this Plan which are attributable to amounts
accrued under the 2004 Plan will be paid in accordance with the terms of the
2004 Plan or the terms of the Key Employee's Distribution Election under the
2004 Plan.
17
