EXHIBIT 10
AMERICAN MEDICAL SECURITY GROUP, INC.
DEFERRED COMPENSATION TRUST
(AS AMENDED AND RESTATED)
TABLE OF CONTENTS
SECTION TITLE PAGE
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SECTION 1 - ESTABLISHMENT OF TRUST...........................................2
SECTION 2 - PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES ................3
SECTION 3 - TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT....................5
SECTION 4 - PAYMENTS TO COMPANY..............................................8
SECTION 5 - INVESTMENT AUTHORITY.............................................8
SECTION 6 - DISPOSITION OF INCOME............................................9
SECTION 7 - ACCOUNTING BY TRUSTEE............................................10
SECTION 8 - RESPONSIBILITY OF TRUSTEE........................................10
SECTION 9 - COMPENSATION AND EXPENSES OF TRUSTEE.............................13
SECTION 10 - RESIGNATION AND REMOVAL OF TRUSTEE..............................14
SECTION 11 - APPOINTMENT OF SUCCESSOR........................................14
SECTION 12 - AMENDMENT OR TERMINATION........................................15
SECTION 13 - MISCELLANEOUS...................................................16
SECTION 14 - EFFECTIVE DATE..................................................17
AMERICAN MEDICAL SECURITY GROUP, INC.
DEFERRED COMPENSATION TRUST
(a) WHEREAS, United Wisconsin Services, Inc. ("UWS") and Marshall &
Ilsley Trust Company (the "Trustee") entered into a Deferred Compensation Trust
Agreement (the "Agreement") dated December 1, 1997;
(b) WHEREAS, UWS adopted the United Wisconsin Services, Inc. Voluntary
Deferred Compensation Plan and entered into other deferred compensation plans,
contracts and agreements providing deferred compensation to employees of UWS and
its subsidiaries (collectively referred to as the "Plans");
(c) WHEREAS, UWS established a trust (the "Trust") and contributed to
the Trust assets to be held therein, subject to the claims of the creditors of
UWS in the event of the Insolvency of UWS, as herein defined, until paid to the
Plans' participants and their beneficiaries in such manner and at such times as
specified in the Plans;
(d) WHEREAS, Effective September 11, 1998, UWS changed its corporate
name to American Medical Security Group, Inc. ("AMSG" or the "Company") and the
parties subsequently amended the Agreement to reflect the corporate name change;
(e) WHEREAS, Company has continued the Plans and continues to incur
liability under the terms of such Plans with respect to the individuals
participating in such Plans;
(f) WHEREAS, Company has continued the Trust and continues to
contribute to the Trust assets to be held therein, subject to the claims of
Company's creditors in the event of Company's Insolvency, as herein defined,
until paid to the Plans' participants and their beneficiaries in such manner and
at such times as specified in the Plans;
(g) WHEREAS, the parties now desire to amend the Agreement to specify
the duties and responsibilities of Trustee and a third party investment advisor
in the event Company appoints a third party investment advisor to manage some or
all of the Trust's investments;
(h) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974;
(i) WHEREAS, it is the intention of the Company to continue to make
contributions to the Trust to provide itself with a source of funds to assist it
in the meeting of its liabilities under the Plans;
NOW THEREFORE,
(i) The parties do hereby amend the Agreement by labeling the
existing paragraphs of Section 5 subsections (a) and (b) and by adding
subsections (c) through (g) to Section 5 of the Agreement, effective as of
April 15, 2004;
(ii) The parties further agree that, except as set forth above, all
other terms and conditions of the Agreement shall remain in full force and
effect and that the Trust shall continue to be comprised, held and disposed of
as follows:
SECTION 1 - ESTABLISHMENT OF TRUST
(a) Company has deposited contributions with Trustee to be held,
administered and disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the Company
is the grantor, within the meaning of subpart E, part I, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of the Plans' participants and general creditors as herein
set forth. The Plans' participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plans and this Trust Agreement shall be mere
unsecured contractual rights of the Plans' participants and their beneficiaries
against Company. Any assets held by the Trust will be subject to the claims of
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with Trustee
to augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any of the Plans'
participants or beneficiaries shall have any right to compel such additional
deposits.
(f) Company will promptly provide Trustee with copies of all Plans and
any amendments thereto.
SECTION 2 - PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES
(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or available under the
Plans), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the Plans'
participants and their beneficiaries in accordance with such Payment Schedule.
Trustee shall make provision for the reporting and withholding of any federal,
state or local taxes that may be required to be withhold with respect to the
payment of benefits pursuant to the terms of a Plan and shall pay amounts
withheld to the appropriate taxing authorities or determine that such amounts
have been reported, withhold and paid by Company.
(b) The entitlement of a Plan's participants or his or her
beneficiaries to benefits under a Plan shall be determined by Company or such
party as it shall designate under a Plan and any claim for such benefits shall
be considered and reviewed under the procedures set out in a Plan.
(c) Company may make payment of benefits directly to the Plans'
participants or their beneficiaries as they become due under the terms of the
Plans. Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plans, Company shall make the balance of each such payment as it
falls due. Trustee shall notify Company where principal and earnings are not
sufficient.
SECTION 3 - TRUSTEE RESPONSIBILITY REGARDING
PAYMENTS TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
(a) Trustee shall cease payment of benefits to the Plans' participants
and their beneficiaries if Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy
Code, or (iii) Company is determined to be insolvent by the Wisconsin
Commissioner of Insurance.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of Company
shall have the duty to inform Trustee in writing of Company's Insolvency. If a
person claiming to be a creditor of Company alleges in writing to Trustee that
Company has become Insolvent, Trustee shall determine whether Company is
Insolvent and, pending such determination, Trustee shall discontinue payment of
benefits to the Plans' participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency, or
has received notice from Company or a person claiming to be a creditor alleging
that Company is Insolvent, Trustee shall have no duty to inquire whether Company
is Insolvent.
(3) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to the Plans' participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of the Plans' participants or their beneficiaries to pursue
their rights as general creditors of Company with respect to benefits due under
the Plans or otherwise.
(4) Trustee shall resume the payment of benefits to the Plans'
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Company is not Insolvent (or is
no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to the
Plans' participants or their beneficiaries under the terms of the Plans for the
period of such discontinuance, less the aggregate amount of any payments made to
the Plans' participants or their beneficiaries by Company in lieu of the
payments provided for hereunder during any such period of discontinuance.
(d) As indicated in Section 13(d), the term "Company" includes where
appropriate each subsidiary which has adopted a Plan and been permitted to
contribute to the Trust. Accordingly, this Section 3 shall be applied on an
employer-by-employer basis in the event of the Insolvency of any employer which
has adopted a Plan and been permitted to contribute to the Trust. The portion of
the Trust that will be subject to claims of general creditors of an employer,
shall be the allocable share of contributions made by that employer (as adjusted
for income, losses and distributions.)
SECTION 4 - PAYMENTS TO COMPANY
Except as provided in Section 3 hereof Company shall have no right or power
to direct Trustee to return to Company or to direct to others any of the Trust
assets before all payment of benefits have been made to the Plans' participants
and their beneficiaries pursuant to the terms of the Plans.
SECTION 5 - INVESTMENT AUTHORITY
(a) Trustee may invest any part or all of the Trust assets in: any
common or preferred stocks, open-end or closed-end mutual funds, put and call
options traded on a national exchange, United States retirement plan bonds,
corporate bonds, debentures, convertible debentures,
commercial paper, U.S. Treasury Bills, U.S. Treasury notes and other direct or
indirect obligations of the United States government or its agencies, improved
or unimproved real estate situated in the United States, limited partnerships,
insurance contracts of any type, mortgages, notes or other property of any
kinds, real or personal, options on common stock on a nationally recognized
exchange with or without holding the underlying common stock, commodities,
commodity options and contracts for the future delivery of commodities, and any
other investments Trustee deems appropriate, as a prudent man would do under
like circumstances with due regard for the purposes of this Trust. Trustee may
also retain in cash so much of the Trust assets as it may deem advisable to
satisfy liquidity needs of the Trust, to deposit any cash held in the Trust
assets in a bank account at reasonable interest, and to deposit in any type of
deposit of Trustee (or of a bank related to the Trustee within the meaning of
Internal Revenue Code 414(b)) at a reasonable rate of interest.
(b) Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by Company. All rights associated with
assets of the Trust shall be exercised by Trustee or the person designated by
Trustee and shall in no event be exercisable by or rest with the Plan'
participants, except that voting rights with respect to Trust assets will be
exercised by Company. Company shall have the right at any time and from time to
time in its sole discretion to substitute the assets of equal fair market value
for any asset held by the Trust. This right is exercisable by Company in a
non-fiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
(c) Notwithstanding anything in this Trust Agreement to the contrary,
Company may elect to appoint a third party as an Investment Adviser to manage,
acquire and dispose of all or a portion of the Trust Fund. Any portion of the
Trust Fund over which an Investment Adviser
shall have such responsibility is hereinafter referred to as a "Directed Fund".
Any Investment Adviser so appointed must be either (i) an Investment Adviser
registered as such under the Investment Advisers Act of 1940, (ii) an Investment
Adviser not registered as such under that Act by reason of paragraph (i) of
Section 203A(a) of such Act, but who is registered as an Investment Adviser
under the laws of the state (referred to in such paragraph (1) in which it
maintains its principal office and place of business, and who, at the time the
Investment Adviser filed its most recently filed registration form with such
state in order to maintain its registration under the laws of such state, also
filed a copy of such form with the Secretary of the United States Department of
Labor, (iii) a bank, as defined in that Act, or (iv) an insurance company
qualified to perform investment management services under the laws of more than
one state, and which shall have acknowledged in writing to both Company and
Trustee that it is a fiduciary with respect to the Plan.
(d) Company shall notify Trustee of any appointment of an Investment
Adviser by delivery to Trustee of a copy of the document under which the
Investment Adviser was appointed to act as such hereunder and shall specify to
Trustee that portion of the Trust Fund which shall be a Directed Fund.
(e) During the term of such appointment, the Investment Adviser with
respect to its Directed Fund shall have the sole responsibility for the
investment and reinvestment of the Directed Fund subject to its investment
management, and shall certify in writing to Trustee the identity of the person
or persons authorized to give instructions or directions on its behalf. Trustee
shall follow such directions and shall be under no duty to review any investment
to be acquired, held or disposed of pursuant to such directions nor to make any
recommendation with respect to the disposition or continued retention of any
such investment. Trustee shall have no
liability for acting without question on the direction of, or failing to act in
the absence of any direction from an Investment Adviser. Company, or some other
fiduciary named by it, shall be responsible for the overall diversification of
the entire Trust Fund.
(f) In the event that an Investment Adviser appointed hereunder should
resign or be removed, Trustee shall, upon receiving written notice thereof,
manage the investment of that portion of the Trust Fund which was a Directed
Fund under the management of such Investment Adviser at the time of such
resignation, removal or withdrawal, unless and until Trustee shall be notified
of the appointment of another Investment Adviser.
(g) Trustee shall have and exercise the powers and authority in the
administration of the Trust Fund, only on the direction of an Investment Adviser
where such powers relate to a Directed Fund, as the case may be, and in its sole
discretion otherwise.
SECTION 6 - DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 7 - ACCOUNTING BY TRUSTEE
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 90 days following the close of each calendar quarter
and within 90 days after the removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transaction effected
by it, including a description of all securities and investments purchased and
sold with the cost or net proceeds of such year or as of the date of such
removal or resignation, as the case may be.
SECTION 8 - RESPONSIBILITY OF TRUSTEE
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct and with like aims,
provided, however, that Trustee shall incur no liability to any person for any
action taken pursuant to a direction, request or approval given by Company which
is contemplated by, and in conformity with, the terms of a Plan or this Trust
and is given in writing by Company. In the event of a dispute between Company
and a party, Trustee may apply to a court of competent jurisdiction to resolve
the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify Trustee against
Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If Company does not pay such costs, expenses and liabilities in a
reasonably timely manner. Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may, with the Company's prior written consent which may not
be unreasonably withheld, hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an
insurance policy is held as an asset of the Trust, Trustee shall have no power
to name a beneficiary of the policy other than the Trust, to assign the policy
(as distinct from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any borrowing
against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to the Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carry8ing on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
(g) INDEMNIFICATION - The Company recognizes that a burden of
litigation, claim or action may be imposed upon the Trustee as a result of some
act or transaction for which it has no responsibility or over which it has no
control under this Trust.
Therefore, in consideration of the Trustee agreeing to enter into this
Trust Agreement, the Company hereby agrees to indemnify and hold harmless the
Trustee and its Affiliates (as defined under Rule 10b-18 promulgated pursuant to
the Securities Exchange Act of 1934), directors, officers, employees, and agents
of the Trustee and its Affiliates (the "Indemnifiable Parties") from and against
all amounts, including, without limitation, taxes, expenses (including
reasonable counsel fees), liabilities, claims, damages, actions, suits or other
charges incurred by or assessed against the Trustee and/or the Indemnifiable
Parties (i) as a direct or indirect result of any act or omission done in god
faith, or alleged to have been done or omitted, by or on behalf of the Trustee
in connection with the Plan or Trust in reliance upon the directions (or absence
of directions) of the Company, an advisory committee or any investment advisor,
or (ii) as a direct or indirect result of the failure of the Company, any
employee thereof or any other designated
agent, directly or through its agents, to adequately, carefully, and diligently
discharge their respective duties and responsibilities under the Plans, the
Trust or applicable law, provided that nothing herein shall be deemed to relieve
the Trustee and/or the Indemnifiable Parties from responsibility for their own
negligence, willful misconduct or lack of good faith.
SECTION 9 - COMPENSATION AND EXPENSES OF TRUSTEE
Company shall pay all administrative and Trustee's fees and expenses.
If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 10 - RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Company, which
shall be effective 30 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 days notice or upon shorter
notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 30 days after receipt of notice
of resignation, removal or transfer, unless Company extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraphs (a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11 - APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns (or is removed) in accordance with Section
10(a) or (b) hereof, Company may appoint an third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee, who
shall have all of the rights and powers of the former Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by Company or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
SECTION 12 - AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of a Plan or shall make the Trust
revocable.
(b) The Trust shall not terminate until the date on which the
Plans' participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans. Upon termination of the Trust any assets
remaining in the Trust shall be returned to the Company.
SECTION 13 - MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to the Plans' participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin.
(d) The term "Company" as used herein shall include, where appropriate,
each subsidiary which has adopted a Plan and been permitted to contribute to the
Trust.
SECTION 14 - EFFECTIVE DATE
The original effective date of this Trust Agreement was December 1,
1997. The effective date of this Trust Agreement, as amended and restated, shall
be April 15, 2004.
Attest: /s/ AMERICAN MEDICAL SECURITY GROUP, INC.
By: /s/ John R. Wirch
Title: Vice President, Human Resources
MARSHALL & ILSLEY TRUST COMPANY
Trustee
Attest: /s/ By: /s/ Sharon K. Rentmeester
Title: Vice President