Exhibit 10.34
**ALL*AMERUS EXCESS BENEFIT PLAN**
Amended and Restated
Generally Effective January 1, 2002
 

 

**TABLE OF CONTENTS**           Page No.ARTICLE 1: ESTABLISHMENT OF PLAN  1        ARTICLE 2: ELIGIBILITY  1        ARTICLE 3: BOOKKEEPING ACCOUNTS  1        ARTICLE 4: BENEFIT CREDITS  2        ARTICLE 5: PHANTOM INVESTMENT CREDITS  2        ARTICLE 6: PAYMENT OF BENEFITS  2        ARTICLE 7: PARTICIPANTS’ RIGHTS  3        ARTICLE 8: ADMINISTRATION  4        ARTICLE 9: CLAIMS AND APPEAL PROCEDURES  4        ARTICLE 10: AMENDMENT AND DISCONTINUANCE  6        ARTICLE 11: RESTRICTIONS ON ASSIGNMENT  6        ARTICLE 12: NATURE OF AGREEMENT  7        ARTICLE 13: CONTINUED EMPLOYMENT  7        ARTICLE 14: BINDING ON COMPANY, PARTICIPANTS AND THEIR SUCCESSORS  7        ARTICLE 15: PAYMENTS MADE BY MISTAKE  7        ARTICLE 16: LAWS GOVERNING  7        ARTICLE 17: TAXES  8 
 

 

**All*****AMERUS EXCESS BENEFIT PLAN**
**ARTICLE 1: ESTABLISHMENT OF PLAN**
     Effective January 1, 1996, American Mutual Life Insurance Company (“AMLI”) established theAll*AmerUs Excess Benefit Plan (the “Excess Plan”). Following a corporate reorganization, AmerUsLife Holdings, Inc. became the successor sponsor of the Excess Plan effective August 1, 1996, onwhich date it succeeded AMLI as the “Company” under the Excess Plan. Pursuant to another corporatereorganization, AmerUs Group Co. became the successor sponsor of the Excess Plan effectiveSeptember 18, 2000, on which date it succeeded AmerUs Life Holdings, Inc. as the “Company” underthe Excess Plan. The Excess Plan is hereby amended and restated effective as of January 1, 2002.
     The Excess Plan is maintained for the sole purpose of providing benefits for employeesparticipating in the All*AmerUs Savings & Retirement Plan (the “Savings Plan”) whose contributionsunder the Savings Plan are limited by section 415 of the Internal Revenue Code of 1986 (the“Code”). The Excess Plan is an unfunded excess benefit plan, as defined in sections 3(36) and4(b)(5) of the Employee Retirement Income Security Act of 1974 (“ERISA”), and, therefore, exemptfrom ERISA.
**ARTICLE 2: ELIGIBILITY**
     An employee may participate in this Excess Plan only if his annual additions to the SavingsPlan actually are limited by Code section 415 (“Participant”). A Participant must complete suchforms and make such elections as the Company’s Benefit and Pension Committee (“Committee”) mayrequire.
**ARTICLE 3: BOOKKEEPING ACCOUNTS**
 (1)  A bookkeeping account shall be established for each Excess Plan Participant, torecord his interest in the Excess Plan.  (2)  Each Participant’s account shall be divided into subaccounts corresponding tosubaccounts under the Savings Plan.  (3)  Such other subaccounts shall be established as the Committee determines arenecessary to keep track of Participants’ interests under the Excess Plan.  (4)  A Participant shall vest in a subaccount under this Excess Plan at the samerate and in the same manner as he vests in the corresponding subaccount under theSavings Plan.  (5)  Excess Plan records shall be kept on a calendar-year basis.
**ARTICLE 4: BENEFIT CREDITS**
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     Each year, the following calculations shall be performed for each Participant:
 (a)  His annual addition (within the meaning of Code section 415(c)(2)) shall becalculated under the Savings Plan, with regard to all of the limitations imposed byCode section 415.  (b)  His annual addition shall be calculated under the Savings Plan without regardto any of the limitations imposed by Code section 415.
     The difference between (b) and (a) shall be credited to the Participant’s bookkeeping accountunder this Excess Plan and allocated among his subaccounts established under Article 3 above, inaccordance with generally accepted accounting principles.
**ARTICLE 5: PHANTOM INVESTMENT CREDITS**
     Each Participant may elect to invest, on a hypothetical basis, his bookkeeping account underthis Excess Plan in the investment options available to him under the Savings Plan without regardto whether corresponding amounts under the Savings Plan must be invested in Company stock. AParticipant’s investment elections under this Excess Plan shall be independent of his investmentelections under the Savings Plan. A Participant’s account under this Excess Plan shall be credited(or debited) with the investment return (including losses) it would have earned had it actuallybeen invested according to the Participant’s directions. The account of a Participant who fails tomake an investment election shall receive the performance it would have received had it beeninvested in the default option under the Savings Plan.
**ARTICLE 6: PAYMENT OF BENEFITS**
     The vested balance in a Participant’s account under this Excess Plan shall be paid as soon asadministratively feasible following his termination of employment (on account of retirement,disability, etc.) with the Company and its affiliates. The Committee shall determine in which ofthe following forms the Participant’s benefits shall be paid:
 (a)  A single cash sum;  (b)  Periodic installments paid monthly, quarterly, or annually over a perioddesignated by the Committee;  (c)  Periodic installments paid monthly, quarterly, or annually in a dollar amountspecified by the Committee;  (d)  A joint and 50% survivor annuity for the lives of the Participant and spouse,which is purchased from a life insurance company with the proceeds of the Participant’sbookkeeping account; or
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 (e)  An annuity for the Participant’s life, which is purchased from a life insurancecompany with the proceeds of the Participant’s bookkeeping account.
     Installment payments under paragraph (b) or (c) shall not be made over a period exceeding theParticipant’s life expectancy.
     An annuity described in paragraph (d) or (e) shall be purchased from an insurance companydesignated in writing by the Participant. The purchase of an annuity under this Article shalldischarge the Excess Plan, the Company, and the Committee from all obligations to the Participant.
     In the event the Participant dies before his vested account balance is exhausted, the balanceshall be paid to his beneficiary (as determined in accordance with the terms of the Savings Plan)in a single sum as soon as administratively feasible.
     All amounts not vested in accordance with the terms of the Excess Plan shall be forfeited uponthe Participant’s termination of employment with the Company.
**ARTICLE 7: PARTICIPANT’S RIGHTS**
     This Excess Plan is unfunded for purposes of the Internal Revenue Code and ERISA.Accordingly, no Participant or beneficiary shall have any title to or beneficial ownership in anyassets of the Company.
     All benefits payable under this Excess Plan (including those derived from Participant’sdeferrals) shall be general, unsecured obligations of the Company to be paid by the Company fromits own funds, and such payments shall not (a) impose any obligation upon the trust fund under theSavings Plan; (b) be paid from the trust fund under the Savings Plan; or (c) have any effectwhatsoever upon the Savings Plan or the payment of benefits from the trust fund under the SavingsPlan.
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**ARTICLE 8: ADMINISTRATION**
     This Excess Plan shall be administered by the Committee, which shall administer it as anunfunded plan which is not intended to meet the qualification requirements of section 401 of theCode. The Committee shall have discretionary authority to interpret and administer this ExcessPlan, and to issue rules and regulations for its governance. No member of the Committee shall beliable to any person for any action taken or omitted in connection with the interpretation oradministration of this Excess Plan. A Committee member shall not participate in any action ordetermination regarding his own benefits. The Company may remove and select a new planadministrator in the Company’s sole discretion.
**ARTICLE 9: CLAIMS AND APPEAL PROCEDURES**
     It shall not be necessary for a Participant or beneficiary entitled to receive a benefithereunder to file a claim for such benefit with any person in order to receive such benefit.However, any Participant or beneficiary who believes that he is entitled to receive a benefithereunder and has not received or begun receiving a distribution of such benefit or who believesthat he is entitled to a benefit hereunder in excess of the benefit which he has received or begunreceiving, may file a written claim for such benefit or increased benefit with the Committee at anytime up to the last day of the 12-month period that begins on the earlier of (i) the date on whichthe claimant learned of facts sufficient to enable the claimant to formulate such claim, or (ii)the date on which the claimant reasonably should have been expected to learn of facts sufficient toenable the claimant to formulate such claim. Such written claim shall set forth the Participant’sor beneficiary’s name and address and shall include a statement of the facts and a reference to thepertinent provisions of the Excess Plan upon which such claim is based. A claimant who does nottimely and properly file his claim as herein required shall to the extent permitted by law beconclusively deemed to have waived any right to the benefit or increased benefit not provided.
     Within 90 days after such claim is filed, the Committee shall provide the claimant withwritten notice of its decision with respect to such claim. If such claim is denied in whole or inpart, the Committee shall, in such written notice to the claimant, set forth in a manner calculatedto be understood by the claimant the specific reason or reasons for denial; specific references topertinent provisions of the Excess Plan upon which the denial is based; a description of anyadditional material or information necessary for the claimant to perfect his claim and anexplanation as to why such material or information is necessary; an explanation of the provisionsfor review of claim denials set forth in this Article; and a statement that if the claimant failsto seek review of the claim denial under this Article within the 60-day period described below heshall, to the extent permitted by law, be conclusively deemed to have waived any right to contestin any forum the determination of the Committee. If special circumstances require additional time,the Committee may extend the period allowed for notice of its decision by a period not to exceed 90days. Written notice of such extension, stating the circumstances requiring the extension and thedate by which a final decision is expected, shall be provided to the claimant before the expirationof the initial 90-day period. With respect to any claim, in the event that the Committee fails toprovide the written notice described herein within the time period described herein, the claimant’sclaim shall be deemed to be denied by the Committee.
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     A Participant or beneficiary whose claim for benefits has been denied may appeal such denialto the Committee and receive a full and fair review of his claim by filing with the Committee awritten application for review at any time within 60 days after the Committee gives him the writtennotice of denial of his claim or, if no such notice has been given to the Participant, within 60days after the end of the 90-day (or extended) period described above. A Participant orbeneficiary who submits a timely written application for review shall be entitled to review any andall documents pertinent to his claim and may submit issues and comments to the Committee inwriting. In the sole and absolute discretion of the Committee, a hearing may be held. Not laterthan 60 days after receipt of a written application for review, the Committee shall give theclaimant written notice of its decision on review, which shall set forth in a manner calculated tobe understood by the claimant specific reasons for its decision and specific references to thepertinent provisions of the Excess Plan upon which the decision is based. If specialcircumstances, including (but not limited to) the need for a hearing as determined by theCommittee, shall require additional time for making a decision on review, the period for decisionmay be extended by not more than 60 days. Written notice of such extension, stating thecircumstances requiring the extension and the date by which a final decision is expected, shall beprovided to the claimant before the expiration of the initial 60-day period. With respect to anyappeal, in the event that the Committee fails to provide the written notice within the time perioddescribed herein, the appeal shall be deemed to be denied. The decision of the Committee, shall,to the maximum extent permitted by law, be final and binding on all parties. A claimant who shallnot timely file his written application for review as required shall, to the maximum extentpermitted by law, be conclusively deemed to have waived any right to contest in any forum theinitial determination of the Committee.
     Any act permitted or required to be taken by a Participant or beneficiary by this Article maybe taken for and on behalf of such Participant or beneficiary by such Participant’s orbeneficiary’s duly authorized representative. Any fees or expenses charged or incurred by suchrepresentative shall be the liability of the Participant or beneficiary, and not the liability ofthe Company, the Excess Plan, the Committee, or any other person. Any claim, notice, application,or other writing permitted or required to be filed with, provided, or given to a party by thisArticle shall be deemed to have been filed, provided, or given when deposited in the United Statesmail, postage prepaid, and properly addressed to the party to whom it is to be provided or given orwith whom it is to be filed. Any such notice, application, or other writing directed to aParticipant or beneficiary shall be deemed properly addressed if directed to the address set forthin the written claim filed by such Participant or beneficiary.
     No legal action to recover Excess Plan benefits or to enforce or to clarify rights under theExcess Plan shall be commenced unless and until the claimant first shall have exhausted the claimsand appeal procedures available to the claimant hereunder. A claimant must raise all issues andpresent all theories relating to his claim to the Committee at one time. Otherwise, the claimantshall be deemed to have abandoned forever all issues and theories not raised and presented to theCommittee.
     Any suit brought to contest a decision of the Committee shall be filed in a court of competentjurisdiction within one (1) year from receipt of written notice of the Committee’s final
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decision or from the date the appeal is deemed denied, and any suit not filed within this one-yearlimitation period shall be dismissed by the court.
     In any suit contesting a decision of the Committee, all issues of fact shall be tried by thecourt and not by a jury. No evidence may be introduced in court which was not previously presentedto the Committee and no evidence may be introduced to modify or contradict the terms of the ExcessPlan document.
     The Committee shall have full discretionary authority to interpret and apply the terms of theExcess Plan document and other relevant documents and relevant provisions of law. This grant ofauthority shall be construed to be as broad as permitted by law and shall include the authority tofind facts, to reach conclusions of law, to interpret and apply ambiguous terms, and to supplymissing terms reasonably necessary to resolution of claims and appeals.
**ARTICLE 10: AMENDMENT AND DISCONTINUANCE**
     The Company may at any time amend any or all provisions of this Excess Plan in any respect(including retroactively) to the maximum extent permitted by law. Such an amendment may be made atany time by written instrument identified as an amendment of the Excess Plan effective as of aspecified date (or dates) and such amendment shall be binding on all Participants, beneficiaries,and other individuals and entities. Notwithstanding the foregoing, no such amendment shall,without the consent of the Participant, have the effect of reducing a Participant’s account balanceimmediately before the amendment is adopted.
     The Company expects to continue the Excess Plan indefinitely. However, the Company shall, tothe maximum extent permitted by law, have the right at any time to terminate the Excess Plan(including retroactively) in whole or in part or to otherwise terminate the Excess Plan (includingretroactively). In accordance with any amendment to the Excess Plan that may be adopted inconnection with any such termination, the Company may after such termination continue the ExcessPlan for the purpose of making distributions under the Excess Plan as they become payable, or mayaccelerate distributions.
**ARTICLE 11: RESTRICTIONS ON ASSIGNMENT**
     The interest of a Participant or his beneficiary in the Excess Plan may not be sold,transferred, assigned, or encumbered in any manner, either voluntarily or involuntarily, and anyattempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber, or change the sameshall be null and void; neither shall the benefits hereunder be liable for or subject to the debts,contracts, liabilities, engagement, or torts of any person to whom such benefits or funds arepayable, nor shall they be subject to garnishment, attachment, or other legal or equitable processnor shall they be an asset in bankruptcy, except that no amount shall be payable hereunder untiland unless any and all amounts representing debts or other obligations owed to the Company or anyaffiliate of the Company by the employee with respect to whom such amount would otherwise bepayable shall have been fully paid and satisfied.
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**ARTICLE 12: NATURE OF AGREEMENT**
     The adoption of this Excess Plan and any setting aside of amounts by the Company with which todischarge its obligations hereunder shall not be deemed to create a trust (other than a grantortrust within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code);legal and equitable title to any funds so set aside shall remain in the Company, and any recipientof benefits hereunder shall have no security or other interest in such funds. Any and all funds soset aside shall remain subject to the claims of the general creditors of the Company, present andfuture, and no payment shall be made under this Excess Plan unless the Company is then solvent.This provision shall not require the Company to set aside any funds, but the Company may set asidesuch funds if it chooses to do so.
**ARTICLE 13: CONTINUED EMPLOYMENT**
     Nothing contained herein shall be construed as conferring upon any employee the right tocontinue in the employ of the Company in any capacity.
**ARTICLE 14: BINDING ON COMPANY, PARTICIPANTS**