EXHIBIT 10(28)
CNA SURETY CORPORATION 2005
DEFERRED COMPENSATION PLAN TRUST
CNA SURETY CORPORATION 2005
DEFERRED COMPENSATION PLAN TRUST
THIS AGREEMENT, made this ____ day of ____________ by and between CNA
Surety Corporation (the "Company") and First National Bank in Sioux Falls (the
"Trustee").
WHEREAS, the Company has established the CNA Surety Corporation 2005
Deferred Compensation Plan, effective January 1, 2005 (the "Plan");
WHEREAS, in addition to the Company, certain Related Companies (as defined
in the Plan) have adopted the Plan (the Company and the participating Related
Companies are collectively referred to hereunder as the "Employer");
WHEREAS, the Company wishes to establish the CNA Surety Corporation 2005
Deferred Compensation Plan Trust (hereinafter the "Trust") and to contribute to
the Trust assets that shall be held therein, subject to the claims of creditors
in the event of Insolvency, as herein defined, until paid to Plan participants
and their beneficiaries in such manner and at such times as specified in the
Plan;
WHEREAS, the parties intend that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plan as an unfunded plan
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, as amended ("ERISA"); and
WHEREAS, the Employer intends 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 Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. ESTABLISHMENT OF TRUST
(a) The Employer hereby deposits with the Trustee in trust $_______, which
shall become the principal of the Trust to be held, administered and
disposed of by the Trustee as provided in this Trust,
(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 (the "Code"),
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 the Employer and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan 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 Plan and this Trust
shall be mere unsecured contractual rights of Plan participants and their
beneficiaries against their
particular Employer. Any assets attributable to an Employer held by the
Trust will be subject to the claims of the general creditors of such
Employer under federal and state law in the event of Insolvency, as
defined in Section 3(a) herein.
(e) The Employer, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered and disposed of
by the Trustee as provided in this Trust. Neither the Trustee nor any Plan
participant or beneficiary shall have the right to compel such additional
deposits,
Section 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) The Employer shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable with respect to each Plan
participant employed by the applicable Employer (and his or her
beneficiaries), that provides a formula or other instructions acceptable
to the Trustee for determining the amounts so payable, the form in which
such amount is to be paid (as provided for or available under the Plan),
and the time of commencement for payment of such amounts. Except as
otherwise provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment
Schedule. The Trustee shall make provision for the reporting and
withholding of any federal, state or local taxes that may be required to
be withheld with respect to the payment of benefits pursuant to the terms
of the Plan and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported, withheld
and paid by the Employer.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by the Employer or such party
as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the Plan.
(c) The Employer may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan. The
Employer shall notify the 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 Plan, the Employer shall make the balance
of each such payment as it falls due. The Trustee shall notify the
Employer where principal and earnings are insufficient.
Section 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN
EMPLOYER IS INSOLVENT.
(a) If an Employer is Insolvent, the Trustee shall cease payment of benefits
to the Plan participants and their beneficiaries attributable to such
Employer. An Employer shall be considered "Insolvent" for purposes of this
Trust if (i) the Employer is unable to pay its debts as they become due,
or (ii) the Employer is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
2
(b) At all times during the continuance of this Trust, as provided in Section
1(d) hereof, the principal and income of the Trust attributable to each
Employer shall be subject to claims of general creditors of such Employer
under federal and state law as set forth below.
(1) The Board of Directors and the President of the Company shall have
the duty to inform the Trustee in writing of the Insolvency of any
Employer. If a person claiming to be a creditor of an Employer
alleges in writing to the Trustee that such Employer has become
Insolvent, the Trustee shall determine whether the Employer is
Insolvent and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan' participants or their
beneficiaries attributable to such Employer.
(2) Unless the Trustee has actual knowledge of an Insolvency, or has
received notice from the Company or a person claiming to be a
creditor alleging that an Employer is Insolvent, the Trustee shall
have no duty to inquire whether any Employer is Insolvent. The
Trustee may in all events rely on such evidence concerning the
Employer's solvency as may be furnished to the Trustee and that
provides the Trustee with a reasonable basis for making a
determination concerning each Employer's solvency.
(3) If at any time the Trustee has determined that an Employer is
Insolvent, the Trustee shall discontinue payments to Plan
participants or their beneficiaries attributable to such Employer
and shall hold the applicable assets of the Trust for the benefit of
such Employer's general creditors. Nothing in this Trust shall in
any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of an
Insolvent Employer with respect to benefits due under the Plan or
otherwise.
(4) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust only after the Trustee has determined that an Employer is
not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the 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
Plan participants or their beneficiaries under the terms of the Plan for
the period of such discontinuance, less the aggregate amount of any
payments made to Plan participants or their beneficiaries by the Employer
in lieu of the payments provided for hereunder during any such period of
discontinuance.
Section 4. NO PAYMENTS TO THE EMPLOYER.
Except as provided in Section 3 hereof, the Employer shall have no right or
power to direct the Trustee to return to the Employer ,or to divert to others
any of the Trust assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan.
3
Section 5. INVESTMENT AUTHORITY.
(a) In no event may the Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by the Employer, other than
a de minimis amount held in common investment vehicles in which the
Trustee invests. All rights associated with assets of the Trust shall be
exercised by the Trustee or the person designated by the Trustee, and
shall in no event be exercisable by or rest with Plan participants.
(b) The Employer shall have the right, at anytime, and from time to time, in
its sole discretion, to substitute assets of equal fair market value for
any assets held by the Trust.
(c) The Employer or the administrator of the Plan may, but shall not be
required to, direct the Trustee in accordance with procedures mutually
agreeable by the parties to invest the assets of the Trust to correspond
to the investment preferences expressed by participants under the Plan.
Any investment direction received from the Employer or the administrator
of the Plan shall remain in effect until a new investment direction is
received by the Trustee, Any investment direction received by the Trustee
shall be implemented as soon as administratively practicable following the
date the investment direction is received by the Trustee,
(d) The Trustee shall have no responsibility for the selection of investment
options under the Plan and shall not render investment advice to any
person. Furthermore, the Trustee shall not be considered a fiduciary with
investment discretion.
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.
The 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 the
Company and the Trustee. Within 90 days following the close of each calendar
year and within 90 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the 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 transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or received being shown separately), and showing all cash, securities and other
property held in the Trust at the end of such year or as of the date of such
removal or resignation, as the case may be.
Section 8. RESPONSIBILITY OF TRUSTEE.
(a) The 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 of an
enterprise of a like character and with like aims; provided, the Trustee
shall incur no liability to any person for any action taken pursuant
4
to a direction, request or approval given by the Company which is
contemplated by, and in conformity with, the terms of the Plan or this
Trust and is given by the Company in accordance with procedures mutually
agreed upon by the parties. In the event of a dispute between the Employer
and a party, the Trustee may apply to a court of competent jurisdiction to
resolve the dispute.
(b) If the Trustee undertakes or defends any litigation arising in connection
with this Trust, the Company agrees to indemnify the Trustee against the
Trustee's costs, expenses and liabilities (including, without limitation,
attorney's fees and expenses) relating thereto and to be primarily liable
for such payments. If the Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain payment
from the Trust.
(c) The Trustee, with the consent of the Company, may consult with legal
counsel (who may also be counsel for the Company generally) with respect
to any of its duties or obligations hereunder.
(d) The Trustee, in consultation with the Company, may hire agents,
accountants, actuaries, investment advisors, financial consultants or
other professionals to assist it in performing any of its duties or
obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein;
provided, if an insurance policy is held as an asset of the Trust, the
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 the Trustee pursuant to this Trust
or to applicable law, the Trustee shall not have any power that could give
this Trust the objective of carrying 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 Code.
Section 9. COMPENSATION AND EXPENSES OF TRUSTEE.
The Company shall pay the Trustee's fees and all administrative expenses
associated with this Trust. If not so paid, the fees and expenses shall be paid
from the Trust.
Section 10. RESIGNATION AND REMOVAL, OF TRUSTEE.
(a) The Trustee may resign at any time by written notice to the Company, which
shall be effective 30 days after receipt of such notice unless the Company
and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company on 30 days written notice or
upon shorter notice accepted by the Trustee.
5
(c) Upon resignation or removal of the 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 the Company extends the
time limit.
(d) If the 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, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All
expenses of the Trustee in connection with the proceeding shall be allowed
as administrative expenses of the Trust.
Section 11. APPOINTMENT OF SUCCESSOR.
(a) If the Trustee resigns (or is removed) in accordance with section 10(a) or
(b) hereof, the Company may appoint any 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 the Trustee upon resignation or
removal. The appointment shall be effective upon acceptance in writing by
the Trustee, who shall have all the rights and powers of the former the
Trustee, including ownership rights in the Trust assets. The former
Trustee shall execute any instrument necessary or reasonably requested by
the 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 the 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 the successor Trustee.
Section 12. AMENDMENT OR TERMINATION.
(a) This Trust may be amended by a written instrument executed by the Trustee
and the Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plan or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan participants
and their beneficiaries are no longer entitled to benefits pursuant to the
terms of the Plan. Upon termination of the Trust, any assets remaining in
the Trust shall be returned to the Employer.
(c) Upon written approval of participants or beneficiaries entitled to payment
of benefits pursuant to the terms of the Plan, the Company may terminate
this Trust prior to the time all benefit payments under the Plan have been
made. All assets in the Trust at termination shall be returned to the
Company.
6
Section 13. MISCELLANEOUS.
(a) Any provision of this Trust prohibited by law shall be ineffective to the
extent of any such prohibition, without invalidating the remaining
provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under this
Trust 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) The Company may assess each participating Related Company a proportionate
share of the fees and administrative expenses associated with this Trust,
based on assets held by the Trust, including amounts paid to the Trustee
in indemnification of the Trustee's costs. By making contributions to the
Trust, a Related Company shall be deemed to have agreed to any such
assessments.
(d) This Trust shall be governed by and construed in accordance with the laws
of Illinois.
Section 14. EFFECTIVE DATE,
The effective date of this Trust Agreement shall be January 1, 2005.
* * * * * *
IN WITNESS WHEREOF, the parties have caused this document to be executed
this _________________ day of _______________ 2005.
CNA SURETY CORPORATION
By:________________________________
Its:_______________________________
FIRST NATIONAL BANK IN SIOUX FALLS
By:________________________________
Its:_______________________________
7