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EXHIBIT
10.5
ASSURANT
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(As Amended and Restated
Effective as of January 1, 2008)
ARTICLE ONE –
INTRODUCTION
Effective January 1,
1990, the Board of Directors of Fortis, Inc. (“Fortis”)
established the Fortis, Inc. Supplemental Executive Retirement Plan
as a nonqualified, unfunded supplemental retirement plan for
certain executives of Fortis and its subsidiaries. The Plan has
been amended from time to time. The Plan was most recently amended
and restated effective as of January 1, 2000 (the “Prior
Plan”). Effective as of February 4, 2004, the Company
was renamed Assurant, Inc. (“Assurant” or the
“Company”) and the Prior Plan was renamed as the
Assurant Supplemental Executive Retirement Plan. Effective as of
January 1, 2008, the Prior Plan is amended and restated as set
forth in this document to comply with Section 409A and for
certain other purposes. Amounts earned and vested as of
December 31, 2004 under the Prior Plan shall remain subject to
the terms and conditions of the Prior Plan. Amounts earned or
vested under this Plan or the Prior Plan after
December 31, 2004 shall be subject to the terms and conditions
of this Plan.
ARTICLE TWO –
DEFINITIONS
Actuarial Equivalent . Except for
determining the amount of benefits payable hereunder in a single
lump sum, Actuarial Equivalent shall mean an actuarial conversion
using the 1983 Group Annuity Mortality table, and a seven percent
(7%) interest per annum assumption. To determine the amount of
benefits payable hereunder in a single lump sum on or after
January 1, 2008, this Plan shall use the mortality table
prescribed under Code Section 417(e) as of the distribution
date and the annual rate of interest prescribed under Code
Section 417(e) for the September preceding the first day of
the Plan Year in which such distribution occurs.
Adverse Change of Circumstance .
If a Change in Control occurs with respect to Assurant under
subparagraphs (ii), (iii), or (iv) of Section 9.01, then
a Participant shall be deemed to have had an Adverse Change of
Circumstance if (i) he was employed by Assurant or any
Division immediately prior to a Change in Control; and
(ii) after such Change in Control of Assurant as described in
Section 9.01, (x) the Participant’s employment with
Assurant and all of its subsidiaries is terminated by Assurant
without Cause; or (y) the Participant terminates employment
voluntarily with Assurant and all of its subsidiaries for Good
Reason.
If a Division has a Change in Control as
defined in subparagraph (i) of Section 9.01, then a
Participant employed by such Division immediately prior to the
Change in Control has an Adverse Change in Circumstances if either
(i) the Person who acquired the Division does not make an
offer of employment to such Participant that includes a
position,
compensation and employment location
that are consistent with the requirements of clauses (i),
(ii) and (iii) set out at the beginning of definition of
Good Reason in this Plan; or (ii) such Participant is offered
employment by such Person on terms described in clause (i) of
this paragraph, but within two (2) years following such Change
in Control (x) the Participant's employment with such Person
and all of its affiliates is terminated by such Person without
Cause; or (y) the Participant terminates employment
voluntarily with such Person and all of its affiliates for Good
Reason.
Any termination for Cause, or by the
Participant for Good Reason, must be communicated by Notice of
Termination to the other party, and must be given in accordance
with Section 10.09 of this Agreement. For purposes of this
Plan, a “ Notice of Termination ” means a
written notice that:
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(i) |
indicates the specific termination provision in this Plan
relied upon; and |
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(ii) |
to the extent applicable, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of the Participant's employment under the provision so indicated;
and |
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(iii) |
if the date of termination is other than the date of receipt of
such notice, specifies the termination date (which date shall be
not more than 30 days after the giving of such notice). |
If the Participant or the Company fails
to set forth in a Notice of Termination any additional fact or
circumstance that contributes to a showing of Good Reason or Cause,
but otherwise delivers a Notice of Termination in accordance with
this Plan, such party will not be precluded from asserting the
additional fact or circumstance in enforcing such party’s
rights hereunder.
Annual Target Earnings shall mean
a Participant’s most recent base salary plus target
short-term incentive bonus approved by the Compensation
Committee.
Assurant shall mean Assurant,
Inc. and its corporate successors.
Assurant Executive Pension Plan
shall mean the defined benefit portion of the Assurant Executive
Pension and 401(k) Plan, a nonqualified, unfunded, deferred
compensation plan, as it may be amended from time to time, or its
successor.
Assurant Pension Plan shall mean
the Assurant Pension Plan, as it may be amended from time to time,
or its successor plan.
Beneficiary shall mean any person
who is entitled to receive benefits from this Plan upon the death
of a Participant as designated by the Participant on his
Beneficiary designation form on file with the Committee. The
Committee may require certification in any form it deems
appropriate of the Participant’s marital status prior to
accepting or honoring any Beneficiary designation. If a Participant
fails to name a Beneficiary, or if all of the
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primary and alternate Beneficiaries
named by the Participant predecease the Participant, then the
Beneficiary shall be the Participant’s Spouse, and if the
Participant does not have a Spouse, then the Beneficiary shall be
the Participant’s estate.
Benefit Service shall have that
meaning as set forth in Section 4.02.
Board shall mean the Board of
Directors of Assurant.
Business Combination means any
reorganization, merger, share exchange or consolidation of a
Person, or the sale or other disposition, directly or indirectly,
of 50% or more of the net assets of a Person.
Cause shall mean termination of a
Participant’s employment due to
(i) the willful and continued
failure of the Participant to perform substantially the
Participant’s duties with the Employer (other than any such
failure resulting from incapacity due to physical or mental
illness), which failure continues for a period of at least thirty
(30) days after a written demand for substantial performance
is delivered to the Participant by the Board or the Chief Executive
Officer of Assurant that specifically identifies the manner in
which the Board or Chief Executive Officer believes that the
Participant has not substantially performed the Participant's
duties, or
(ii) the willful engaging by
the Participant in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Employer.
For purposes of this definition of
“Cause,” no act or failure to act on the part of the
Participant shall be considered “willful” unless it is
done, or omitted to be done, by the Participant in bad faith or
without reasonable belief that the Participant's action or omission
was in the best interests of the Employer.
Code shall mean the Internal
Revenue Code of 1986, as amended from time to time.
Committee shall mean the Benefit
Plans Committee as it may be constituted from time to
time.
Compensation Committee shall mean
the Compensation Committee of the Board.
Comprehensive Benefit shall mean
any amount payable to or on behalf of a Participant or his Spouse
or Beneficiary under this Plan.
Disability shall mean that the
Participant becomes entitled to recover benefits under any group
long-term disability plan or policy maintained by Assurant or its
subsidiaries.
Division means the business unit
of the Company within which the Participant works from time to
time.
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Effective Date shall mean
January 1, 1990. The effective date of this amendment and
restatement is January 1, 2008.
Employer shall mean Assurant or
any subsidiary of Assurant that employs any Participant in this
Plan.
Executive shall mean an executive
officer of an Employer.
Executive Committee shall mean
the committee consisting of the Company’s Chief Executive
Officer, Chief Financial Officer and Executive Vice President of
Human Resources.
Fortis (B) means Fortis
(B), a Belgian corporation, or any successor thereof.
Fortis (NL) means Fortis (NL),
N.V., a Netherlands corporation, or any successor
thereof.
Good Reason means any of the
following circumstances:
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(i) |
Diminution of Position . A material diminution in the
Participant’s position, authority, duties or
responsibilities, not including a change in job title or reporting
responsibilities. |
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(ii) |
Reduction of Compensation. Any material reduction in the
aggregate value of the Participant’s annual base salary,
short-term cash bonus target amount, long-term incentive plan
target amount, and Company-provided benefits, all as in effect
immediately prior to the Change in Control, or any failure by the
Company to pay any such amounts to the Participant as earned by the
Participant. An inadvertent failure by the Company to make any
payment of compensation to the Participant that does not occur in
bad faith and that is remedied by the Company promptly after the
Company receives notice thereof from the Participant, is excluded
from the definition of “Good Reason.” |
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(iii) |
Employment Location. The Company’s requiring the
Participant to be based at any location that is more than fifty
(50) miles from the location at that the Participant is based
immediately prior to the Change in Control. |
Notwithstanding the foregoing,
“Good Reason” shall not exist until after (1) the
Participant has given the Company written notice of the applicable
event not later than 30 days after the occurrence of such event,
specifying in reasonable detail the circumstances of the event and
stating the Participant’s intent to terminate his or her
employment if not remedied, and (2) the Company has not
remedied such event within 30 days after receipt of such notice;
provided, however, that if the specified event reasonably cannot be
remedied within such 30-day period, the Company commences
reasonable steps within such 30-day period to remedy such event and
diligently continues such steps thereafter until a remedy is
effected, and the remedy is effected within 60 days after the
Company’s receipt of the Participant’s notice, then
such event shall not constitute “Good
Reason.”
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Also notwithstanding the foregoing,
“Good Reason” shall not exist if the Participant is
offered employment with the Company or an affiliate thereof in a
position other than with the Division, or if the Participant is
offered employment with the Person that acquires the Division or
any of such Person’s affiliates, and in either case such
offer of employment includes a position, compensation and
employment location that are consistent with the requirements of
clauses (i), (ii) and (iii) set out at the beginning of
this definition of Good Reason.
Participant shall mean an
Executive of Assurant or any of its subsidiaries who is designated
as a Participant under Article Three.
Person means any individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as
amended).
Plan shall mean the Assurant
Supplemental Executive Retirement Plan as set forth in its entirety
in this document and any amendments thereto.
Plan Year shall mean the calendar
year.
Section 409A means Code
Section 409A and the Treasury regulations or any other
authoritative guidance issued thereunder.
Separation from Service Date
shall mean the date on which the Participant has a separation from
service within the meaning of Section 409A other than
termination of employment for Cause.
Social Security Benefit shall
mean the annual primary insurance amount that will become payable
to the Participant at (A) the earliest date the Participant
could begin to receive old age benefits (whether or not reduced)
under the Social Security Act, if the Participant receives benefits
under this Plan prior to such date; or (B) the date the
Participant actually received benefits under this Plan, if the
Participant received benefits under this Plan after the earliest
date he could begin to receive Social Security old age benefits
(whether or not reduced), based on the Social Security Act in
effect at the Separation from Service Date, assuming
(i) no future adjustments in
benefits or the contribution and benefit base; and
(ii) the Participant’s
compensation at the Separation from Service Date remains in effect
thereafter.
Spouse shall mean the person who
was married to the Participant (in a civil or religious ceremony
recognized under the laws of the state where the marriage was
contracted) on the date of the Participant’s
death.
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Vesting Service shall mean a
Participant’s Benefit Service; provided, however, that in no
event shall a Participant be credited with Vesting Service for
employment before he begins to participate in this Plan.
Defined terms in general . A
defined term, such as “Disability,” will normally
govern the definitions of derivatives therefrom, such as
“Disabled,” even though such derivatives are not
specifically defined and even if they are or are not initially
capitalized. The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender, unless the context
clearly indicates to the contrary. Singular and plural nouns and
pronouns shall be interchangeable as the factual context may allow
or require. The words “hereof,” “herein,”
“hereunder” and other similar compounds of the word
“here” shall mean and refer to the entire Plan and not
to any particular provisions or Section. References to
“Participants,” “former Participants,”
“Beneficiaries” and “Spouses” shall include
also those who may make claims through or on behalf of such
persons.
ARTICLE THREE –
PARTICIPATION
To participate in this Plan, an
Executive of Assurant or any of its subsidiaries must be nominated
for participation herein by the Executive Committee. However, at
the next meeting of the Compensation Committee following the
nomination of an Executive’s participation in this Plan, such
nomination shall be approved by the Compensation Committee before
the date on which the Executive is eligible to begin participation
in the Plan.
ARTICLE FOUR –
COMPREHENSIVE BENEFIT
4.01 Comprehensive Benefit .
Subject to the conditions stated in this Plan, when a Participant
terminates employment with Assurant and all of its subsidiaries
other than for Cause, the Participant shall be entitled to receive
a benefit, referred to as the “Comprehensive Benefit,”
expressed as a single life annuity. The Comprehensive Benefit shall
be equal to (i) his Target Benefit minus the sum of;
(ii) his Qualified Plan Benefit; (iii) his Nonqualified
Plan Benefit; (iv) his Social Security Benefit; and
(v) Other Benefit, if any, where:
(i) Target Benefit is
fifty percent (50%) of the Participant’s Annual Target
Earnings as of his Separation from Service Date, multiplied by a
fraction (not to exceed one), the numerator of which is the number
of months of Benefit Service as of his Separation from Service
Date, and the denominator of which is two hundred forty (240). In
other words, after twenty (20) years of Benefit Service, a
Participant will earn a full fifty percent (50%) benefit under
this Plan. If the Comprehensive Benefit is paid prior to age 60,
then the Target Benefit will be reduced on an Actuarially
Equivalent basis to reflect early commencement from age 60 to the
date the Comprehensive Benefit was paid; provided, however, that
effective for Participants who first became eligible to participate
in the Plan on or after January 1, 2007, if the
Comprehensive
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Benefit is paid prior to age
62, then the Target Benefit will be reduced on an Actuarially
Equivalent basis to reflect early commencement from age 62 to the
date the Comprehensive Benefit is actually paid.
(ii) Qualified Plan
Benefit is the amount of annual retirement income that is
payable to or for the benefit of the Participant under the Assurant
Pension Plan as of his Separation from Service Date.
(iii) Nonqualifed Plan
Benefit is the lump sum payable to or for the benefit of the
Participant under the Assurant Executive Pension Plan as of his
Separation from Service Date.
(iv) Social Security
Benefit is defined in Article Two of this Plan.
(v) Other Benefit is
the amount of any other benefit that is payable to or for the
benefit of the Participant as of his Separation from Service Date
as specified in the Compensation Committee resolutions approving
his participation in the Plan.
A Participant’s Comprehensive
Benefit shall not change after the Participant’s Separation
from Service Date except as provided in Section 4.04(b)
(Social Security Offset).
4.02 Calculation of Benefit
Service . A Participant’s Benefit Service begins on the
date he begins active, full-time employment with Assurant or any of
its subsidiaries, and ends on his Separation from Service Date. For
the first and last calendars months of the Participant’s
employment, active employment by the Participant with Assurant or
any of its subsidiaries for any part of a calendar month is deemed
to be a full month of Benefit Service. If a Participant was
formerly employed by a company that is acquired by Assurant or any
of its subsidiaries, then Benefit Service prior to the date of such
acquisition shall be determined by the Compensation Committee in
its sole discretion, and shall be recorded in the Compensation
Committee resolutions approving the Participant’s
participation in the Plan.
4.03 Commencement and Form of
Comprehensive Benefit . The Participant’s Comprehensive
Benefit shall be paid in a single lump sum as soon as
administratively feasible, but no later than 90 days, after the
Participant’s Separation from Service Date. With respect to a
specified employee (within the meaning of Section 409A),
payment may not occur before
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