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Exhibit 10.28
NEW JERSEY STATE MEDICAL UNDERWRITERS, INC.
DEFERRED COMPENSATION PLAN
AMENDMENT AND RESTATEMENT
The Non-Qualified Deferred Compensation Agreement ("Agreement" or "Plan")
originally entered into and effective 11/1/96 ("Effective Date"), by and
between New Jersey State Medical Underwriters, Inc. ("Employer" or
"Corporation") and Xxxxxx Xxxxxxxx (hereinafter sometimes referred to as
"Employee" or "Participant"), is hereby amended and restated in its entirety.
The purpose of this amendment and restatement is to provide Employee greater
choice of investment alternatives and to extend the deferral period for
previously deferred amounts in consideration of an increase to the deferral
account balance of the Employee.
WITNESSETH THAT:
In consideration of the agreements hereinafter contained the parties hereto
agree as follows:
1.1 EFFECTIVE DATE OF AMENDMENT AND RESTATEMENT. Employer hereby amends and
restates the Non-Qualified Deferred Compensation Agreement to be effective
December 31, 1998.
1.2 NATURE OF PLAN. The Plan is intended to be and at all times shall be
interpreted and administered so as to qualify as an unfunded plan of
deferred compensation for purposes of the Internal Revenue Code of 1986, as
amended, and regulations thereunder, and the Employee Retirement Income
Security Act of 1974.
1.3 PURPOSE OF PLAN. The purpose of this Plan is to enable Employee to enhance
his financial security by permitting him to enter into this agreement with
Employer to defer his compensation and receive benefits in a future year.
1.4 APPLICABLE COMPENSATION. Elections to defer compensation shall be made with
respect to compensation not yet earned. In the case of bonuses or other
nonperiodic payments, such compensation shall be treated as earned no
earlier than the day on which the amount payable has been determined. In
the case of periodic payments such as salary, such compensation shall be
treated as earned no earlier than the day prior to the day on which the
service period giving rise to the salary has commenced.
1.5 DEFERRAL OF COMPENSATION. Employee shall make an irrevocable election to
defer compensation to be paid by Employer by the signing of an Election to
Defer in the form approved by Employer. Deferrals under such elections
shall be effective on the date the Election to Defer is properly completed
by Employee and accepted by Employer. Employer shall acknowledge receipt of
Employee's deferral election by signing the Election to Defer and returning
it to Employee within 14 days of receipt.
1.6 EARNINGS. Interest shall be credited monthly by Employer on amounts
deferred under this Plan at a rate of return equal to the aggregate
investment portfolio total rate of return for the Medical Inter-Insurance
Exchange of New Jersey or, if applicable, the return directly associated
with any specific investment alternatives chosen by Employee and approved
by Employer, including, but not limited to, any income (loss) and realized
and unrealized gains (losses). Employee may change selected investment
alternatives on a prospective basis only.
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1.7 EMPLOYER CONTRIBUTION. In consideration for the extension of the initial
distribution date for Plan benefits, Employer shall increase the account
balance of Employee under this Plan by an amount that reflects the amount
the account balance would have been if the prior deferrals under the Plan
had been invested at a rate of return equal to the aggregate investment
portfolio total rate of return for the Medical Inter-Insurance Exchange
of New Jersey.
1.8 COMMENCEMENT OF DISTRIBUTIONS. Distribution of benefits to Participant
under the Plan shall commence no earlier than January 15, 2004 provided,
however, that distribution shall be accelerated in the event Employee
separates from service of Employer for any reason prior to January 15,
2004. In such event, Plan benefits shall commence within 60 days after
such separation from service. Notwithstanding the foregoing, if
Participant dies prior to the time his benefits under this Plan have been
distributed in full, any remaining portion of benefits yet to be
distributed under this Plan shall be distributed as soon as
administratively practicable to Participant's estate or such other
beneficiary as designated by Participant on a Beneficiary Designation
Form.
1.9 MANNER OF PAYMENT. Distributions shall be made in cash by Employer except
to the extent that Participant elects to receive payment in the form of
property that was designated as an investment alternative as provided in
Section 1.6 of this Agreement. In such case, any cash due shall be
reduced by the fair market value of such in kind payment at the time of
the distribution.
1.10 PLAN ADMINISTRATION. The Corporation shall be responsible for the
administration of the Plan, including any associated costs.
1.11 OWNERSHIP OF ASSETS. All amounts of compensation deferred under the Plan,
all property and rights purchased with such amounts, and all income
attributable to such amounts, property, or rights shall remain (until
made available to Participant) solely the property and rights of
Corporation (without being restricted to the provisions of benefits under
the Plan) and shall be subject to the claims of Corporation's general
creditors.
1.12 LIMITATION OF RIGHTS/EMPLOYMENT RELATIONSHIP. Neither the establishment
of this Plan nor any modification thereof, nor the creation of any fund
or account, nor the payment of any benefits, shall be construed as giving
Participant or any other person any legal or equitable right against
Employer except as provided in the Plan.
1.13 LIMITATION OF ASSIGNMENT. Benefits under the Plan may not be assigned,
sold, transferred, or encumbered, and any attempt to do so shall be void.
Participant's interest in benefits under the Plan shall not be subjected
to debts or liabilities of any kind and shall not be subject to
attachment, garnishment, or other legal process.
1.14 REPRESENTATIONS. Employer does not represent or guarantee that any
particular federal or state income, payroll, personal property, or other
tax consequence will result from participation in this Plan. Participant
should consult with professional tax advisors to determine the tax
consequences of his or her participation.
1.15 APPLICABLE LAW. This Plan shall be construed in accordance with
applicable federal law and, to the extent otherwise applicable, the law
of the State of New Jersey.
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1.16 RESPONSIBILITY FOR TAXES. Participant is responsible for all federal,
state, and other taxes assessed on amounts deferred under this Plan.
Employer shall have the right to withhold or reduce Plan benefits to
satisfy such withholding obligations as it may deem necessary to ensure
proper withholding procedures.
1.17 ESTABLISHMENT OF TRUST. In the event of a Change in Control or a Change
in Position as defined in Paragraph 1.19, the Employer shall
immediately establish the Employee's Trust (the "Trust") and contribute
assets to such Trust in an amount equal to the Employer's obligations
to the Participant under this Plan determined as of the date of the
Change in Control or the Change in Position. Such Trust shall be
established in accordance with the Internal Revenue Service model trust
agreement as set forth in Revenue Procedure 92-64.
1.18 EFFECT OF THE TRUST. The provisions of the Plan shall govern the rights
of the Participant to receive distributions pursuant to the Plan. The
provisions of the Trust shall govern the rights of the Participant and
the creditors of the Employer to the assets transferred to the Trust.
The Employer shall at all times remain liable to carry out its
obligations under the Plan. The Employer's obligations under the Plan
may be satisfied with Trust assets distributed pursuant to the terms
of the Trust, and any such distribution shall reduce the Employer's
obligation under Plan.
1.19 DEFINITIONS. For purposes of Paragraph 1.17, the following capitalized
words shall have the meanings set forth below:
1.19.1 "CHANGE IN CONTROL" shall be as defined in Section 1.5 of the
Employment Agreement dated as of October 9, 1998 among the MIIX Group,
Incorporated, New Jersey State Medical Underwriters, Inc. and Xxxxxx
Xxxxxxxx.
1.19.2 "CHANGE IN POSITION" shall mean (a) a change in the title, nature or
status of responsibilities and reporting obligations of the
Participant; (b) a reduction by the Employer in the Participant's
annual base salary; or (c) a failure by the Employer to increase the
Participant's compensation at a rate commensurate with that of other
key executives of the Employer.
IN WITNESS WHEREOF, the parties have executed this Amendment and Restatement to
The Non-Qualified Deferred Compensation Agreement ("Agreement" or "Plan")
originally entered into and effective 11/1/96 ("Effective Date"), by and between
New Jersey State Medical Underwriters, Inc. ("Employer" or "Corporation") and
Xxxxxx Xxxxxxxx, to be effective on the date cited above.
WITNESS:
/s/ Xxxxxxx Xxxxxxx 12/31/98
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New Jersey State Medical Underwriters, Inc. Date
By:
/s/Xxxxxx Xxxxxxxx 12/31/98
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Xxxxxx Xxxxxxxx Date
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NEW JERSEY STATE MEDICAL UNDERWRITERS, INC.
DEFERRED COMPENSATION PLAN
ELECTION TO DEFER
Pursuant to the terms of the Non-Qualified Deferred Compensation Agreement
entered into between me and New Jersey State Medical Underwriters, Inc. on
November 1, 1996, as amended, I hereby elect to defer the following amounts or
percentages of compensation:
SALARY: Commencing on _____________________________
In the amount of _____________________________
BONUS: That will be determined on February 16, 1999
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In the amount of Total in excess of $25,000
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Participant's Signature: /s/ Xxxxxx Xxxxxxxx
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Print Name: Xxxxxx Xxxxxxxx
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Date: 12/31/98
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Approved: NEW JERSEY STATE MEDICAL UNDERWRITERS, INC.
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By: /s/ Xxxxxxx Xxxxxxx
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Print Name: Xxxxxxx Xxxxxxx
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Date: 12/31/98
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NEW JERSEY STATE MEDICAL UNDERWRITERS, INC.
DEFERRED COMPENSATION PLAN
INVESTMENT ELECTION FORM
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Pursuant to the terms of the Non-Qualified Deferred Compensation Agreement
entered into between me and New Jersey State Medical Underwriters, Inc. on
November 1, 1996, as amended ("Plan"), I hereby revoke any prior investment
designations for the amounts credited to my account balance under the Plan, and
I hereby elect the following investments for amounts credited to my account.
This election is to be effective at the earliest date permissible under, and
subject to all of the terms of, the Plan:
Investment Options Percentage of Plan Account:
1. CERTAIN SPECIFIED REAL ESTATE HELD FOR RENTAL AND INVESTMENT.* $
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2. UNSPECIFIED.** 100%
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3. -------------------------------------------------------------- --------
4. -------------------------------------------------------------- --------
5. -------------------------------------------------------------- --------
Total $
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* Specify real estate investment:
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** Therefore earning interest in an amount equal to the aggregate investment
portfolio total rate of return for the Medical Inter-Insurance Exchange of New
Jersey.
(If Participant at any time uses the real estate investment for personal
purposes, Participant will pay fair market value rental for such use.)
Participant's Signature: /s/ Xxxxxx Xxxxxxxx
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Print Name: Xxxxxx Xxxxxxxx
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Date: 12/31/98
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Approved: New Jersey State Medical Underwriters, Inc.
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By: /s/ Xxxxxxx Xxxxxxx
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Print Name: Xxxxxxx Xxxxxxx
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Date: 12/31/98
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