Exhibit 10(a), Form 10-K
Kansas City Life Insurance Company
ELEVENTH
AMENDMENT
KANSAS CITY LIFE
DEFERRED COMPENSATION PLAN
The Kansas
City Life Deferred Compensation Plan is hereby amended and restated
by Kansas City Life Insurance Company
(“Company”) to be
effective December 1, 2008.
WHEREAS, Section 409A was added to the Internal
Revenue Code (“Code”) by the American Jobs Creation Act
of 2004, and Section 409A makes significant changes to the rules
governing deferred compensation plans; and
WHEREAS, the Company intends to
amend and restate the
Plan in order to comply with Code Section 409A.
NOW, THEREFORE, the Company hereby states the
Plan as follows:
ARTICLE I
Creation and Purpose
1. It is the intention of the Company
to establish this Plan of Deferred
Compensation for the benefit of designated employees selected by
management.
2. By
enrolling in this Plan, an employee agrees to defer a portion of
his or her current earnings. It is the intent of this Plan that
accumulated and vested benefits will be paid to such
Participants at the time of an event
allowed under Code Section 409A, hereinafter referred to as a
“Payment Event” as follows:
a. at
a specified time or pursuant to a
fixed scheduled specified under the Plan at the date of
deferral;
b. upon
Separation from Service, or in the case of a Participant who meets the definition of a
“Specified Employee ” as
defined in Code
Section 409A(a)(2)(B)(i) upon six (6) months after Separation from Service;
c. Disability;
d. death;
e. Change in
the Ownership or Effective Control of the Company; or
f. the
occurrence of an Unforeseeable Emergency.
ARTICLE II
Definitions
(a) “Salary”
shall mean only the fixed amounts,
weekly, semi-monthly, or monthly, due and payable to the employee
by the Company, and does not include any bonuses, overtime pay or
other extraordinary payments by the Company.
(b) “Bonus”
shall mean Regional Marketing, Group
Sales and Incentive bonuses by the Company.
(c) “Deferred
Compensation” shall mean the
amount of Salary and/or Bonus not yet earned, which the Participant
and the Company mutually agree shall be deferred in accordance with
the provisions of this Plan.
(d) “Normal
Retirement” shall mean
Termination from Employment with the Company becoming effective on
or about the first day of the calendar month following the
Participant’s attainment of age sixty-five (65).
(e) “Early
Retirement” shall mean
retirement from employment with the Company on the first day of any
month following a Participant’s fifty-fifth (55th) birth date
with the attainment of at least five (5) years of employment. For
purposes of determining the attainment of at least five (5) years
of employment, the years of employment of a Participant with Old
American Insurance Company prior to November 1, 1991 shall not be
taken into account.
(f) “Termination
of Employment” shall
mean the severance of the Participant’s employment with the
Company prior to his or her eligibility for retirement.
(g) “Separation
from Service” shall
mean when an employee leaves the company due to Normal Retirement,
E arly Retirement, death, or otherwise has a Termination of
Employment with the Company.
(h) “Participant”
shall mean any employee of Kansas
City Life Insurance Company, or any subsidiary corporation, under
the rules of common law, who shall be a member of a select group of
management or highly compensated employees designated for
participation by Kansas City Life Insurance Company from time to
time.
(i) “Company”
means Kansas City Life Insurance
Company, a Missouri Corporation, Sunset Life Insurance Company of
America, a Missouri Corporation, Old American Insurance Company, a
Missouri Corporation and any other subsidiary corporation of Kansas
City Life Insurance Company, any or all of which may sometimes be
referred to herein as affiliated corporations.
(j) “Company
Stock” shall mean shares of
the common capital stock of Kansas City Life Insurance
Company.
(k) “Disability”
shall mean that the Participant, by
reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months is (i)
unable to engage in any substantial gainful activity or (ii)
receiving income replacement benefits for at least three (3) months
under an accident and health plan covering employees of the
Company. The Administrative Committee will make all determinations
of Disability under this Plan.
(l) “Unforeseeable
Emergency” shall mean a severe
financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, the
Participant’s beneficiary, or the Participant’s
dependent (as defined in Code Section 152, without regard to
Section 152(b)(1), (b)(2), and (d)(1)(B)); loss of the
Participant’s property due to casualty; or other similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. Whether a
Participant is faced with an Unforeseeable Emergency permitting a
distribution is to be determined based on the relevant facts and
circumstances of each case, but, in any case, a distribution on
account of Unforeseeable Emergency may not be made to the extent
that such emergency is or may be relieved through reimbursement or
compensation from insurance or otherwise, by liquidation of the
Participant’s assets, to the extent that liquidation of such
assets would not cause severe financial hardship, or by cessation
of deferrals under the Plan. The Administrative Committee will make
all determinations of Unforeseeable Emergencies under this
Plan.
(m) “Change
in the Ownership” of
the Company shall occur on the date that any one person, or more
than one person acting as a group, acquires ownership of stock of
the Company that, together with stock held by such person or group,
constitutes more than fifty percent (50%) of the total fair market
value or total voting power of the stock of the Company.
(n) “Change
in the Effective
Control” of the Company shall occur on the date that any one
person, or more than on person acting as a group, acquires (or has
acquired during the twelve (12) month period ending on the date of
the most recent acquisition by such person or persons) ownership of
stock of the Company possessing thirty percent (30%) or more of the
total voting power of the stock of such corporation or the date a
majority of members of the Company’s Board of Directors is
replaced during any twelve (12) month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company’s Board of Directors before the date
of the appointment or election.
(o) “Plan
Administrator” shall
mean the Administrative Committee of the Plan.
(p) “Plan
Year” shall mean the
twelve (12) month period beginning January 1 st
of each year and ending December 31
st of each
year.
ARTICLE III
Administration
1. The
Administrative Committee, sometimes herein referred to as
the “Committee”,
shall consist of a number of persons, not less than three (3) nor
more than five (5), designated by the Executive Committee of Kansas
City Life Insurance Company, who shall serve terms of one (1) year
or until their successors are designated, and said Committee shall
have the responsibility for the general administration of the Plan
and for carrying out the provisions of the Plan in accordance with
its terms. The Committee shall have absolute discretion in carrying
out its responsibilities.
2. The
Committee may appoint from its members such committees with such
powers as it shall determine; may authorize one (1) or more of its
number or any agent to execute or deliver any instrument or make
any payment on its behalf; and may utilize counsel, employ agents
and provide for such clerical and accounting services as it may
require in carrying out the provisions of the Plan.
3. The
Committee shall hold meetings upon such notice, at such place or
places, and at such time or times as it may from time to time
determine.
4. The
action of a majority of the members expressed from time to time by
a vote in a meeting or in writing without a meeting shall
constitute the action of the Committee and shall have the same
effect for all purposes as if assented to by all members of the
Committee at the time in office.
5. No
member of the Committee shall receive any compensation for
his or her services as such,
and, except as required by law, no bond or other security shall be
required of him in such capacity in any jurisdiction.
6. Subject to the
limitations of this Plan and Trust, the Committee from time to time
shall establish rules or regulations for the administration of the
Plan and the transaction of its business. The Committee shall have full and complete
discretionary authority to construe and interpret the Plan and
decide any and all matters arising hereunder, except such matters
which the Executive Committee of the Company from time to time may
reserve for itself, including the right to remedy possible
ambiguities, inconsistencies or omissions. All interpretations,
determinations and decisions of the Committee or the Executive
Committee of Kansas City Life Insurance Company in respect of any
matter hereunder shall be final, conclusive and binding on all
parties affected thereby. The Committee shall, when requested,
submit a report to the Executive Committee of Kansas City Life
Insurance Company giving a brief account of the operation of the
Plan and the performance of the various funds and accounts
established pursuant to the Plan.
7. Any
member of the Committee may resign by giving notice to the
Executive Committee at least fifteen (15) days before the effective
date of his or her
resignation. Any Committee member shall resign upon request of the
Executive Committee. The Executive Committee shall fill all
vacancies on the Committee as soon as is reasonably possible after
a resignation takes place, and until a new appointment takes place,
the remaining members of the Committee shall have authority to act,
if approved by either a majority of the remaining members or by two
(2) members, whichever number is lesser .
ARTICLE IV
Participation in the Plan
1. Following his or
her designation by the Company, a qualified employee may commence his or her
participation in this Plan as of the first day of the month
coinciding with or next following such designation, whichever first
occurs. He or she shall be notified of his or her eligibility from
time to time by the Company.
2. The
eligible employee who desires to participate must execute a
Salary and/or eligible Bonus
reduction agreement in form prescribed by the Company, as provided
in Section 3 of this Article IV, and the employee shall thereby
agree to the terms of this Plan and any amendments hereafter
adopted.
3. Commencing
December 1, 2008, on or before
December 31, 2008 for the subsequent Plan Year beginning January 1,
2009, or in the case of a newly eligible Participant within thirty
(30) days of becoming eligible, each Participant may elect to have
his or her Salary or eligible Bonus reduced in an amount equivalent
to one percent (1%) through one hundred percent (100%), and said
amount shall be withheld by payroll deduction. Where an employee
has ceased being eligible to participate in the Plan (other than
the accrual of earnings), regardless of whether all amounts
deferred under the Plan have been paid, and subsequently becomes
eligible to participate in the Plan again, the employee may be
treated as being initially eligible to participate in the plan if
the employee had not been eligible to participate in the Plan
(other than the accrual of earnings) at any time during the
twenty-four (24) month period ending on the date the employee again
becomes eligible to participate in the Plan. For each Plan Year
2009 and after, Salary and/or eligible Bonus deferral elections for
the following Plan Year must be made by December 31 st
of the year preceding the Plan Year and shall be irrevocable for
the entire Plan Year. Deferral elections shall remain in effect in
subsequent years unless terminated or modified by the Participant
and are irrevocable during the Plan Year. These amounts shall be
the P
