Exhibit 10(g)(3)
PROTECTIVE LIFE
CORPORATION
DEFERRED COMPENSATION
PLAN
FOR OFFICERS
(AS AMENDED AND RESTATED AS OF
JANUARY 1, 2009)
Section 1.
Purpose; Plan Eligibility
The purpose of this Plan is to
enable each Officer of the Company to save for retirement and other
long-term needs by deferring receipt of a portion of the
Officer’s compensation and by receiving additional deferred
compensation that cannot be provided under the 401(k) Plan due
to restrictions on the 401(k) Plan contained in the
Code.
Section 2.
Definitions
“Accounts”
shall mean a Participant’s Pay
Deferral Account, Stock Deferral Account and Matching Account under
the Plan.
“Base
Salary” shall
mean (a) a Participant’s base salary, as set forth in
the records of the Company, and (b) any bonus payable in cash
that does not meet the requirements of a Cash Bonus.
“Board” shall mean the Board of Directors of the Company
or any duly authorized committee thereof.
“Cash
Bonus” shall
mean the annual cash bonus payable to a Participant under the
Company’s Annual Incentive Plan (or such other eligible bonus
plans as may be determined by the Company), and excluding sales,
special or “one-time” bonuses (as determined by the
Company). The term “Cash Bonus” shall refer only
to an annual bonus that is payable upon the satisfaction of
pre-established organizational or individual performance criteria
and that, at the time a Deferral Election is made, is not
substantially certain to be paid.
“Change of
Control” shall
occur (subject to the provisions of Code Section 409A), when
(i) any one person (or more than one person acting as a group
(as provided in Code Section 409A)) (such person or group, an
“Acquiring Person”) acquires ownership of the
Company’s stock that, together with stock previously held by
the Acquiring Person, constitutes more than 50% of the total fair
market value or more than 50% of the total voting power of the
Company, or (ii) a majority of the members of the Board is
replaced during any 12-month period by directors whose appointment
or election was not endorsed by a majority of the members of the
Board before the date of the appointment or election, or
(iii) an Acquiring Person acquires (or has acquired during the
12-month period ending on the date of the most recent acquisition
by such Acquiring Person) assets from the Company that have a total
gross fair market value equal to or more than 80% of the total
gross fair market value of the Company’s assets immediately
before such acquisition or acquisitions.
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“Closing
Price” of the
Common Stock on any trading day shall mean the daily closing price
for a share of the Common Stock on the Composite Tape for the New
York Stock Exchange or, if the Common Stock is not listed on such
Exchange, on the principal United States securities exchange
registered under the Exchange Act on which the Common Stock is
listed or, if the Common Stock is not listed on any such exchange,
the average of the daily closing bid quotations with respect to a
share of the Common Stock on the National Association of Securities
Dealers, Inc., Automated Quotations System or any system then
in use or, if no such quotations are available, the fair market
value of a share of the Common Stock as determined by a majority of
the Board.
“Code” shall mean the Internal Revenue Code of 1986, as
amended from time to time. Reference to a Section of the
Code shall include that Section, the regulations promulgated
thereunder, and any comparable section of any future legislation
that amends, supplements or supersedes such Section, effective as
of the date such comparable Section is effective with respect
to the Plan.
“Committee”
shall mean the Compensation and
Management Succession Committee of the Board (or its
designee).
“Common
Stock” shall
mean the common stock of the Company.
“Company”
shall mean Protective Life
Corporation, a Delaware corporation, and any successor
thereto.
“Company Matching
Contribution” shall have the meaning set forth in the
401(k) Plan.
“Compensation”
shall mean an Officer’s Base
Salary, Cash Bonuses, and shares of Common Stock that are issuable
to the Officer under the Company’s Long-Term Incentive Plan
and are designated by the Company as eligible for deferral
hereunder.
“Deferral
Election” shall
mean the election by a Participant to defer receipt of Compensation
pursuant to Section 3.
“Disability”
shall mean that the Participant
(1) is unable to engage in any substantial gainful activity 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 at least 12 months, (2) is, 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 at least 12 months, receiving income
replacement benefits for a period of not less than 3 months under
an accident and health plan covering employees of the Company, or
(3) has been determined to be totally disabled by the Social
Security Administration.
“ERISA” shall mean the Employee Retirement Income
Security Act of 1974, as amended.
“Exchange
Act” shall mean
the Securities Exchange Act of 1934, as amended.
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“401(k) Plan”
shall mean the Company’s
401(k) and Stock Ownership Plan, as from time to time
amended.
“Matching
Account” shall
mean a book entry account established by the Company to record the
amounts credited to a Participant with respect to the
Participant’s Supplemental Matching Contributions (and
earnings thereon).
“Mutual Fund Investments
Matching Subaccount” shall mean a subaccount of the Matching Account
for that portion of each allocation of Supplemental Matching
Contributions that the Participant initially elects to allocate to
a Phantom Fund other than the Protective Stock Fund (as provided in
Section 4(d)) (and earnings thereon).
“Mutual Fund Investments
Pay Deferral Subaccount” shall mean a subaccount of the Pay Deferral
Account for (1) all deferrals of cash bonuses made pursuant to
the Plan before January 1, 2005 that were credited as a
“cash allotment” as of December 31, 2004, and
(2) all deferrals of Base Salary and Cash Bonuses made
pursuant to the Plan after December 31, 2004 that the
Participant initially elects to allocate to a Phantom Fund other
than the Protective Stock Fund (as provided in Section 4(d))
(and earnings thereon).
“Officer”
shall mean an officer of the Company
(as determined by the Company in its sole discretion) who is a
member of a “select group of management or highly compensated
employees” within the meaning of ERISA.
“Participant”
shall mean any Officer who either
(a) is eligible to make and does make a Deferral Election, or
(b) has a Supplemental Matching Contribution allocated to his
or her Matching Account.
“Participating
Companies” shall mean the Company and its affiliated
companies.
“Pay Deferral
Account” shall
mean a book entry account established by the Company to record the
amounts credited pursuant to a Participant’s Deferral
Election with respect to Base Salary or Cash Bonuses (and earnings
thereon).
“Phantom
Fund” shall
mean one or more mutual funds or other investments (including the
Protective Stock Fund) which shall determine the hypothetical
investment experience of the Participant’s Accounts under the
Plan as provided in Section 4.
“Plan” shall mean the Protective Life Corporation
Deferred Compensation Plan for Officers, as from time to time
amended.
“Plan
Year” shall
mean each period beginning on January 1 and ending on
December 31 of the same year.
“Post-2008
Subaccount” shall mean a subaccount for (1) all amounts
credited to a Participant’s Pay Deferral Account after
December 31, 2008 (and earnings thereon), and
(2) all
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amounts credited to a Participant’s Stock
Deferral Account after December 31, 2008 (and earnings
thereon).
“Pre-2005
Subaccount” shall mean a subaccount for (1) all amounts
credited to a Participant’s Pay Deferral Account before
January 1, 2005 (and earnings thereon), and (2) all
amounts credited to a Participant’s Stock Deferral Account
before January 1, 2005 (and earnings thereon).
“Protective Stock
Fund” shall
mean a Phantom Fund that is deemed to be invested primarily in
Common Stock.
“Protective Stock
Investment Matching Subaccount” shall mean a subaccount of the Matching Account
for (1) one-half of each allocation of Supplemental Matching
Contributions (and earnings thereon), plus (2) that portion of
the remaining one-half of each allocation of Supplemental Matching
Contributions that the Participant initially elects to allocate to
the Protective Stock Fund (as provided in Section 4(d)) (and
earnings thereon).
“Protective Stock
Investment Pay Deferral Subaccount”
shall mean a subaccount of the Pay
Deferral Account for (1) all amounts attributable to deferrals
of cash bonuses made pursuant to the Plan before January 1,
2005 that were credited as a “stock allotment” as of
December 31, 2004 (and earnings thereon), and (2) all
deferrals of Base Salary and Cash Bonuses made pursuant to the Plan
after December 31, 2004, that the Participant initially elects
to allocate to the Protective Stock Fund (as provided in
Section 4(d)) (and earnings thereon).
“Specified
Employee” shall
mean, with respect to April 1 of each Plan Year (beginning
April 1, 2005) and for the 12-month period thereafter, any
person who met the definition of a “key employee” of
the Company under Code Section 416(i) (without regard to
Code Section 416(i)(5)) at any time during the preceding Plan
Year, all as provided in Code Section 409A.
“Stock Deferral
Account” shall
mean a book entry account established by the Company to record the
amounts credited pursuant to a Participant’s Deferral
Election with respect to Compensation in the form of Common Stock
(and earnings thereon).
“Supplemental Matching
Contribution” shall mean a credit to a Participant’s
Matching Account, determined as provided in
Section 5.
“Termination of
Employment” shall mean a Participant’s
“separation from service” with the Company and each
other Participating Company by which the Participant is employed,
as defined in Code Section 409A (other than a separation from
service as a result of death or Disability).
“2005-2008
Subaccount” shall mean a subaccount for (1) all amounts
credited to a Participant’s Pay Deferral Account after
December 31, 2004 and before January 1, 2009 (and
earnings thereon), and (2) all amounts credited to a
Participant’s Stock Deferral Account after December 31,
2004 and before January 1, 2009 (and earnings
thereon).
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“Unforeseeable
Emergency” shall have the meaning set forth in
Section 7(k).
Section 3.
Deferral of Compensation
(a) Deferral Elections
. On or before December 31 of any calendar year, an
Officer may elect to defer receipt of Base Salary otherwise payable
to the Officer for services rendered in a subsequent calendar
year. On or before June 30 of any calendar year and
subject to the requirements of Code Section 409A, an Officer
who has been continuously employed by the Participating Companies
from the later of (1) January 1 of such calendar year and
(2) the date on which the performance criteria with respect to
the Cash Bonus or Common Stock award for such calendar year were
established may elect to defer receipt of Cash Bonuses and Common
Stock otherwise payable to the Officer with respect to a
performance period ending on December 31 of the year in which
the deferral election is made. Furthermore, when an Officer
who is not (and has not during the immediately preceding 24 months
been) eligible to participate in any other plan, program or
arrangement of the Company which must be aggregated with the Plan
for purposes of Code Section 409A first becomes eligible to
participate in the Plan, the Officer may elect, within the 30 day
period immediately following such eligibility date, to defer
receipt of Base Salary otherwise payable to the Officer in the
calendar year in which such eligibility date occurs with respect to
services performed after the date of the Deferral Election. A
Deferral Election shall be made by written or electronic notice on
a form or in a manner prescribed by or acceptable to the Company
and shall be effective only when properly filed with the
Company. The Company may from time to time establish minimum
and maximum amounts (which may be stated as percentages of
Compensation) that an Officer may defer. Any Deferral
Election shall be subject to such conditions as the Company shall
determine.
(b) Form and Duration
of Election to Participate . Unless otherwise specified
in a Deferral Election (or as provided in Section 7(k)), a
Deferral Election made by a Participant shall continue in effect
(including with respect to Compensation payable in subsequent
calendar years) unless and until the Participant revokes or
modifies such election by written or electronic notice on a form or
in a manner prescribed by or acceptable to, and filed with, the
Company. Any such revocation or modification of a Deferral
Election shall become effective only with respect to Compensation
payable with respect to services performed or a performance period
ending in the calendar year following the Company’s receipt
of such revocation or modification.
(c) Renewal . A
Participant who has revoked a Deferral Election may file a new
Deferral Election to defer Compensation payable with respect to
services performed or a performance period ending in the calendar
year following the year in which such new Deferral Election is
filed.
(d) Participant with
Previous Termination. Any Plan provision to the contrary
notwithstanding, a former Participant who is an Officer and who has
previously received a distribution from the Plan upon Termination
of Employment may not recommence participation in the Plan until
the second calendar year after the year in which the former
Participant again became an Officer.
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Section 4.
Pay Deferral, Stock Deferral and Matching
Accounts
(a) General.
The Company shall establish and maintain (1) a separate
Pay Deferral Account for each Participant who has deferred Base
Salary or Cash Bonuses, (2) a separate Stock Deferral Account
for each Participant who has deferred Common Stock that was
otherwise issuable under the terms of the Company’s Long-Term
Incentive Plan, and (3) a separate Matching Account for each
Participant who receives a Supplemental Matching Contribution (as
provided in Section 5). The Company shall also establish
and maintain (1) the appropriate Mutual Fund Investments Pay
Deferral Subaccount and Protective Stock Investment Pay Deferral
Subaccount within each Deferral Account, (2) the Protective
Stock Fund within each Stock Deferral Account, (3) the
appropriate Mutual Fund Investments Matching Subaccount and
Protective Stock Investment Matching Subaccount within each
Matching Account, and (4) as appropriate, Pre-2005
Subaccounts, 2005-2008 Subaccounts and Post-2008 Subaccounts within
each Pay Deferral Account and Stock Deferral Account. Within
each Account and Subaccount, the Company shall maintain records on
a Plan Year basis.
(b) Credits to
Accounts. An amount equal to the amount of Base Salary
and Cash Bonus deferred pursuant to a Participant’s Deferral
Election shall be credited to the Participant’s Pay Deferral
Account as of the date such Compensation would otherwise have been
paid to the Participant. A number of stock equivalents equal to the
number of shares of Common Stock deferred pursuant to a
Participant’s Deferral Election shall be credited to the
Participant’s Stock Deferral Account as of the date such
Compensation would otherwise have been paid to the
Participant. A Participant’s Supplemental
Matching Contribution for a Plan Year shall be credited to the
Participant’s Supplemental Matching Account as of the date
such amounts would have been allocated as the Company Matching
Contributions to the accounts of the Participant in the
401(k) Plan but for application of the applicable Code
limits. Each amount so credited to an Account shall also be
allocated to the appropriate Subaccount or Subaccounts within such
Account.
(c) Designation of Phantom
Funds . The Company shall select Phantom Funds which
shall be used to determine the hypothetical investment experience
of each Participant’s Accounts under the Plan. Except
as provided in Section 8(a), the Protective Stock Fund shall
be the only Phantom Fund available for the Protective Stock
Investment Pay Deferral Subaccount, the Stock Deferral Account and
the Protective Stock Investment Matching Subaccount.
(d) Investment Election
. Each Participant shall from time to time designate, in such
manner as may be approved by the Company, the Phantom Fund or Funds
that shall determine the investment experience with respect to such
Participant’s Mutual Fund Investments Pay Deferral Subaccount
and Mutual Fund Investments Matching Subaccount. The Company
may, in its discretion, (1) establish minimum amounts (in
terms of dollar amounts or percentages) that may be allocated to
any Phantom Fund, (2) establish rules regarding the time
at which any such election (or any change in such election
permitted under Section 4(e)) shall become effective, and
(3) permit transfers among Phantom Funds in a
Participant’s Mutual Fund Investments Pay Deferral Subaccount
and Mutual Fund Investments Matching Subaccount balances, pursuant
to such procedures as the Company shall determine. If a
Participant fails to make a valid election with respect to any
amount allocated to the Participant’s Mutual Fund Investments
Pay Deferral
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Subaccount or the Participant’s Mutual
Fund Investments Matching Subaccount (or if any such election
ceases to be effective), such amount shall be deemed invested in
the Phantom Fund which the Company determines generally to have the
least risk of loss of principal.
(e) Change in Designation
of Phantom Fund . Any change in the Phantom Funds
designated with respect to all or any portion of a
Participant’s Mutual Fund Investments Pay Deferral Subaccount
and Mutual Fund Investments Matching Subaccount shall comply with
the currently applicable rules established by the Company and
all rules applicable with respect to any initial designation
of such Phantom Funds. Except as provided in
Section 8(a), in no event may a Participant transfer funds
from a Phantom Fund other than the Protective Stock Fund to the
Protective Stock Fund, or transfer funds from the Protective Stock
Fund to another Phantom Fund.
(f) Allocations to
Protective Stock Fund. If deferred Base Salary
(other than the bonuses included in the definition of “Base
Salary”) has been allocated to the Protective Stock Fund, the
Protective Stock Fund in the Participant’s Protective Stock
Investment Pay Deferral Subaccount shall be credi
