Exhibit 10(t)
REGAN HOLDING
CORP.
AMENDED AND
RESTATED
“KEY EMPLOYEE
DEFERRED COMPENSATION PLAN”
THIS AMENDED AND
RESTATED MASTER PLAN AGREEMENT (the “Plan”) is hereby
effective as of the 5th day of December 2008, by Regan
Holding Corp., the Service Recipient, hereinafter referred to as
the “Corporation”.
RECITALS
WHEREAS
, the Plan was
originally adopted on January 1, 1998; and
WHEREAS
, the Plan was
established to provide certain key employees of the Corporation who
are selected for participation in the Plan with the opportunity to
defer receipt of their Base Salary and annual Bonus otherwise
payable by the Corporation and to provide an additional retirement
benefit for them to the extent their benefits under the
Corporation’s 401(k) Plan have been limited pursuant to
certain provisions of applicable law; and
WHEREAS
, the Corporation
intends that the Plan shall at all times be administered and
interpreted in such a manner as to constitute an unfunded
nonqualified deferred compensation plan for tax purposes and for
purposes of Title I of ERISA maintained “primarily for the
purposes of providing deferred compensation for a select group of
management or highly compensated employees” (“top-hat
plan”); and
WHEREAS
, the Corporation has
operated the Plan during 2005, 2006 and 2007 in good faith
compliance with Internal Revenue Code Section 409A and Applicable
Guidance. The Corporation intends that all Accounts of Participants
under the Plan, including those granted before January 1, 2005, be
subject to this Plan.
NOW, THEREFORE, BE IT
RESOLVED THAT, the Corporation hereby amends and
restates the Plan effective December 5, 2008, in order to comply
with Section 409A and the final Treasury Regulations promulgated
thereunder.
ARTICLE
1
Definitions
As used within this
document, the following words and phrases have the meanings
described in this Article 1 unless a different meaning is required
by the context. Some of the words and phrases used in the Plan are
not defined.
1.1
“Account(s)” shall mean a book account
reflecting amounts credited to a Participant’s Account(s). To
the extent that it is considered necessary or appropriate, the
Committee shall maintain separate subaccounts for each source of
contribution under this Plan or shall otherwise provide a means for
determining that portion of an Account attributable to each
contribution source.
1.2 “Aggregated
Plans” shall mean this Plan and any other like-type plan
or arrangement (account balance plan) of the Corporation in which a
Participant participates and to which the Plan or Applicable
Guidance requires the aggregation of all such nonqualified Deferred
Compensation in applying Code § 409A and associated
regulations.
1.3
“Agreement” shall mean the Regan Holding Corp.
Key Employee Deferred Compensation Plan Agreement entered into
between the Corporation and an Eligible Participant. The Agreement
includes an Eligible Participant’s Election(s) of
Deferral.
1.4 “Applicable
Guidance” shall mean, as the context requires, Code
§ 409A, Final Treasury Regulations §1.409A, or other
written Treasury or IRS guidance regarding or affecting Code §
409A. Applicable Guidance also includes, through December 31, 2007,
Notice 2005-1, Notice 2006-79 and Notice 2006-100.
1.5 “Base
Salary” shall mean the annual cash compensation relating
to services performed during any Plan Year payable to a Participant
as an employee for services rendered to an employer, but excluding
any: Bonuses; commissions; overtime pay; incentive payments;
nonmonetary awards; relocation expenses; retainers; directors fees
and other fees; severance allowances; pay in lieu of vacations;
employer-provided pensions, retirement, deferred compensation,
welfare, or fringe benefits; insurance premiums paid by the
employer, insurance benefits paid to the Participant or his or her
Beneficiary; stock options and grants; car allowances; and expense
reimbursements. Base Salary shall be calculated before reduction
for compensation voluntarily deferred or contributed by the
Participant pursuant to all qualified or non-qualified plans of the
employer and shall be calculated to include amounts not otherwise
included in the Participant’s gross income under Sections
125, 402(e)(3), 402(h), or 403(b) of the Code pursuant to plans
established by the employer; provided, however, that all such
amounts will be included in Compensation only to the extent that,
had there been no such Plan, the amounts would have been payable in
cash to the Participant.
1.6
“Board” shall mean the Board of Directors of the
Corporation.
1.7
“Bonus” shall mean any compensation, in addition
to Base Salary, relating to services performed during any Taxable
Year of the Corporation, whether or not paid in such Taxable Year
or included on the Federal Income Tax Form W-2 for such Taxable
Year, payable to a Participant as an Employee under the
Corporation’s bonus plans, excluding stock options. Bonus
shall be calculated before reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all
qualified or nonqualified plans of the Corporation and shall be
calculated to include amounts not otherwise included in the
Participant’s gross income under Section 125, 402(e) (3),
402(h), or 403(b) of the Code pursuant to Plans established by the
Corporation. A Bonus also may be Performance-Based Compensation as
defined under the terms of the Plan.
1.8
“Claimant” shall mean a person who believes that
he or she is being denied a benefit to which he or she is entitled
hereunder.
1.9
“Code” shall mean the Internal Revenue Code of
1986, as amended.
1.10
“Committee” shall mean a committee designated by
the Board which committee shall administer the Plan as set forth in
Article 10.
1.11
“Compensation” shall mean the Base Salary and
Bonus payable to an Eligible Participant by the Corporation on
account of the Participant’s services therefore as an
Employee.
1.12
“Corporation” shall mean the person or entity:
(i) receiving the services of the Participant; (ii) with respect to
whom the Legally Binding Right to Compensation arises; and (iii)
all persons with whom such person or entity would be considered a
single employer under Code §414(b) or §414(c).
1.13 “Deemed
Investment Election” shall mean the elections made by a
Participant specifying the manner in which the Participant
Account(s) will be hypothetically invested in the Deemed Investment
Options in accordance with the terms of the Plan.
1.14 “Deemed
Investment Options” shall mean the hypothetical
Investment Options offered by the Corporation, from time to time,
that are used to determine the Earnings on the Participant
Account(s).
1.15 “Deferred
Amounts” shall mean the amount of Compensation deferred
pursuant to Article 3 of the Plan and credited to a
Participant’s Retirement Account.
1.16 “Deferred
Compensation” shall mean the Participant’s Accounts
attributable to Deferred Amounts, Nonelective Matching
Contributions (if any), and Earnings on such contributions. The
“Deferral of Compensation” is Compensation that the
Participant or the Corporation has deferred under the Plan.
Compensation is deferred if: (i) under the terms of the Plan and
the relevant facts and circumstances, the Participant has a Legally
Binding Right to Compensation during a Taxable Year; and (ii) such
Compensation is or may be payable to (or on behalf of) the
Participant in a later Taxable Year. An amount generally is payable
at the time the Participant has a right to currently receive a
transfer of cash or property, including a transfer of property
includable in income under Code §83.
1.17
“Designated Beneficiary” shall mean the person
or persons, natural or otherwise, designated in writing by a
Participant to receive a Participant’s vested Account upon
death the Participant.
1.18
“Earnings” shall mean, the Plan’s actual
or notional income, attributable to an amount of Deferral of
Compensation, (in accordance with Code §31.3121(v) (2)-1(d)
(2)) and in accordance with the terms of the Plan. For purposes of
this Plan, Earnings on an amount deferred generally includes an
amount credited on behalf of a Participant that reflects a rate of
return that does not exceed either: (i) the rate of return on a
predetermined actual investment or, (ii) if the income does not
reflect a rate of return on a predetermined actual investment, a
reasonable rate of interest, in accordance with Treasury Regulation
§1.409A-1(o).
1.19 “Effective
Date” shall be the date the Plan was originally adopted,
January 1, 1998.
1.20 “Election
of Deferral” shall mean a written notice filed by an
Eligible Participant with the Committee pursuant to which the
Participant elects to defer receipt of Compensation under the Plan.
The Election of Deferral shall be part of the Agreement.
1.21 “Eligible
Participant” shall mean for any Plan Year (or applicable
portion of a Plan Year), an Employee who is determined by the
Corporation, or its designee, to be a Participant under the Plan.
If the Corporation determines that an Employee first becomes an
Eligible Participant during a Plan Year, the Corporation shall
notify the individual in writing of its determination and of the
date during the Plan Year on which the individual shall first
become a Plan Participant.
1.22
“Employee” shall mean a person, (in accordance
with Treasury Regulations §1.409A-1(f) (1), and which is on
the cash basis method of accounting for Federal income tax
purposes) providing services to the Corporation in the capacity of
a common law Employee of the Corporation.
1.23
“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as it may be amended from time to
time.
1.24 “Legally
Binding Right” shall mean, with respect to Compensation:
(i) the Participant’s right to such Compensation, granted by
the Corporation, after the Participant has performed the services
which created the Legally Binding Right, and (ii) where
Compensation may not be reduced unilaterally or eliminated by the
Corporation or any other person after the services creating the
right to Compensation has been performed. The Corporation, based on
the facts and circumstances, will determine whether a Legally
Binding Right exists or does not exist with respect to
Compensation, in accordance with Treasury Regulation
§1.409A-1(b)(1).
1.25
“Nonelective Matching Contribution” shall mean
contributions made by the Corporation pursuant to Article
4.
1.26
“Nonelective Matching Contribution Account”
shall mean: (i) the sum of the Nonelective Matching Contribution
amounts, plus (ii) Earnings thereon, less (iii) fees (if any), less
(iv) all distributions made to the Participant or his or her
Beneficiary that relate to the Participant’s Nonelective
Matching Contribution Account, and tax withholding amounts deducted
(if any) from said Account.
1.27
“Participant” shall mean an Eligible Participant
and/or an individual with a benefit under the Plan.
1.28
“Payment” shall mean except as otherwise
provided in the Plan, for purposes of subsequent changes in the
time or form, the term Payment refers to each separately identified
amount to which a Participant is entitled under the Plan, on a
determinable date, and includes amounts paid for the benefit of the
Participant. An amount is “separately identified” only
if the amount may be objectively determined under a
nondiscretionary formula. For purposes of this Article, a payment
includes the provision of any taxable benefit, including payment in
cash or in kind. A payment includes, but is not limited to, the
transfer, cancellation, or reduction of an amount of Deferred
Compensation in exchange for benefits under a welfare benefit plan,
a fringe benefit excludible under Code §119 or §132, or
any other benefit that is excludible from gross income.
1.29
“Performance-Based Compensation” shall mean that
portion of a Participant’s Compensation, if any, that is
contingent on the satisfaction of pre-established organizational or
individual performance criteria relating to a performance period of
at least twelve (12) consecutive months. Organizational or
individual performance criteria are considered preestablished if
established in writing by not later than ninety (90) days after the
commencement of the period of service to which the criteria
relates, provided that the outcome is substantially uncertain at
the time the criteria are established. Performance-Based
Compensation may include payments based on performance criteria
that are not approved by a compensation committee of the board of
directors (or similar entity in the case of a non-corporate
Corporation) or by the stockholders or members of the Corporation.
Performance-Based compensation does not include any amount or
portion of any amount that will be paid either regardless of
performance, or based upon a level of performance that is
substantially certain to be met at the time the criteria is
established. Compensation may be Performance-Based Compensation
where the amount will be paid regardless of satisfaction of the
performance criteria due to the Participant’s death,
disability, or a change in control event (as defined in Treasury
Regulations §1.409A-3(i) (5) (i)), provided that a payment
made under such circumstances without regard to the satisfaction of
the performance criteria will not constitute performance-based
compensation. For purposes of this Article, a disability refers to
any medically determinable physical or mental impairment resulting
in the Participant’s inability to perform the duties of his
or her position or any substantially similar position, where such
impairment can be expected to result in death or can be expected to
last for a continuous period of not less than six (6) months.
Performance-based compensation includes payments based upon
subjective performance criteria, provided that: (i) the subjective
performance criteria are bona fide and relate to the performance of
the Participant, a group of Participants that includes the
Participant, or a business unit for which the Participant provides
services (which may include the entire organization); and (ii) the
determination that any subjective performance criteria have been
met is not made by the Participant or a family member of the
Participant (as defined in Section
267(c)(4) applied as if
the family of an individual includes the spouse of any member of
the family), or a person under the effective control of the
Participant or such a family member, and no amount of the
Compensation of the person making such determination is effectively
controlled in whole or in part by the Participant or such a family
member.
1.30
“Permissible Payments” shall mean the following
three (3) events upon which payment will be made to a Participant
or their Designated Beneficiary under the terms of the Plan: (i)
the Participant’s Separation from Service, (ii) upon an
Unforeseeable Emergency, or (iii) a time or a fixed schedule
specified under the Plan, in accordance with Treasury Regulation
§1.409A-3(a).
1.31
“Plan” shall mean this amended and restated
Producer Commission Deferral Plan, the Agreement, all Election of
Deferral Forms, and the Trust, (if any). For purposes of applying
Code § 409A requirements, this Plan is an account balance plan
under Treasury Regulation §1.409-1(c) (2) (i) (A).
1.32 “Plan
Year” shall mean, for the first Plan Year, the period
beginning on the date the Plan was originally adopted, January 1,
1998 and ending December 31, 1998, and thereafter, a twelve (12)
month period beginning January 1 of each calendar year and
continuing through December 31 of such calendar year.
1.33 “Qualified
Plan” shall mean the Regan Holding Corp. 401(k) Plan, a
qualified plan under the Internal Revenue Code, which is sponsored
by the Corporation in the relevant Plan Year and is designated by
the Committee to be taken into account for purposes of the
calculation of Contributions made to this Plan.
1.34 “Qualified
Plan Contribution Limitations” shall mean any reductions
in contributions made on behalf of a participant to the Qualified
Plan due to the application of IRC Section 401(k) or (m) or due to
an election to defer Base Salary or Bonus under the Plan, but
excluding any reductions arising from the dollar limit under IRS
Section 402(g)(1); the limit on compensation taken into account
under IRC Section 401(a)(17) in calculating employer or employee
contributions for the Qualified Plan; or the maximum allocations
permitted under the Qualified Plan under IRC Section 415(c). The
impact of such limits on the Participant for purposes of this Plan
shall be determined by the Committee based upon reasonable
estimates and shall be final and binding as of the da