EX-10.1







Aflac
Incorporated 2008 Form 10-K





EXHIBIT 10.1




AMENDMENT TO THE

AMERICAN FAMILY CORPORATION

RETIREMENT PLAN FOR SENIOR OFFICERS




          This Amendment (this “Amendment”) to the American Family Corporation Retirement Plan for
Senior Officers (the “Plan”) hereby is amended effective January 1, 2009, by Aflac Incorporated,
the current sponsor of the Plan (“Aflac”).




BACKGROUND





	A.	 	Type of Plan. Aflac sponsors the Plan, a nonqualified plan providing deferred retirement
benefits for certain specified senior officers.
	 
	B.	 	New Legal Requirements. Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), requires that all nonqualified plans providing deferred compensation (such
as the Plan) be amended no later than December 31, 2008 (with a January 1, 2009 effective
date), to comply with the requirements of Section 409A.
	 
	C.	 	Purpose. The purpose of this Amendment is to bring the Plan into compliance with the
requirements of Section 409A.





STATEMENT OF AMENDMENT





Effective as of January 1, 2009, the Plan hereby is amended as follows:




	 	1.	 	Section I of the Plan hereby is amended by adding thereto, immediately following
the language therein, the following:






No additional Participants (other than those listed in this
Section 1 and those designated as Participants prior to January
1, 2008) will be added to the Plan.




	 	2.	 	Section IV.A of the Plan hereby is amended by replacing the colon at the end of
the third sentence thereof with a period, and by adding to said section, immediately
following the third sentence thereof, the following:






Notwithstanding any statement in this section to the contrary,
for a Participant retiring after December 31, 2004, (i) such
payments of his full compensation shall be made in substantially
equal installments during the one-year period beginning upon the
date of the Participant’s Separation from Service (as defined
below), and (ii) such installment payments shall commence upon
his Separation from Service and shall be paid monthly upon the
first day of each month; provided, the installments otherwise
payable hereunder during the six (6)-month period immediately
following the Participant’s Separation from Service shall be
delayed until six (6) months after the date of the Participant’s
Separation from Service, and any



 









 







payments that would otherwise be payable during such six
(6)-month period shall be accumulated without interest and paid
in a lump sum upon the six (6)-month anniversary of the date of
the Participant’s Separation from Service.




	 	3.	 	Section IV.A(1) of the Plan hereby is amended by adding to said section,
immediately following the language therein, the following:






Notwithstanding any statement in this subsection A(1) to the
contrary, (i) such payments of sixty (60) percent of his total
compensation shall be made in substantially equal installments
commencing upon the one-year anniversary of his Separation from
Service (or, for a Participant who retired before December 31,
2004, his retirement) and shall be paid monthly upon the first
day of each month; and (ii) for clarification purposes, “total
compensation” shall mean the total of the amounts of the
Participant’s base salary and annual bonus award.




	 	4.	 	Section IV.A(2) of the Plan hereby is amended by deleting said section in its
entirety and by replacing it with the following:






	 	2.	 	FULL RETIREMENT WITH SURVIVING
SPOUSE BENEFIT.






In lieu of the single life annuity form of payment provided
in subsection A(1) hereof, through the written election of
the Participant filed by the Participant with the Company on
or before the date of his Separation from Service (or, for a
Participant who retired before December 31, 2004, his
retirement), the Participant may elect to receive a joint
and survivor annuity form of payment with (i) payments of
fifty-four (54) percent of his total compensation (as
measured in subsection A(1) hereof) commencing upon the
one-year anniversary of his Separation from Service (or, for
a Participant who retired before December 31, 2004, his
retirement). Such amount shall be paid in substantially
equal monthly installments upon the first day of each month
through the end of the calendar month in which his death
occurs; and (ii) commencing in the calendar month following
the calendar month in which the Participant’s death occurs
after his Separation from Service (or, for a Participant who
retired before December 31, 2004, his retirement),
substantially equal monthly installment payments paid upon
the first day of each month to the Participant’s surviving
spouse equal to one-half (1/2) of the amount that the
Participant would have received as retirement income had he
survived, with such monthly installments being paid for the
lifetime of the surviving spouse, terminating at the end of
the calendar month in which the surviving spouse’s death
occurs; provided, if the spouse of a Participant who retired
before December 31, 2004, has not attained age 55 as of the
Participant’s date of death, the spousal lifetime survivor
annuity will terminate at the end of the month in which the
spouse dies or has received the 240th monthly
survivor annuity payments, whichever occurs first. For a
Participant who retires after December 31, 2004, this joint
and survivor annuity form of payment shall be available to a
Participant only to the extent that, for purposes of Section
409A, it is determined



 









 







to be actuarially equivalent to the single life annuity form
of payment in subsection A(1) hereof; provided, in the event
this joint and survivor annuity form of payment is not
actuarially equivalent for purposes of Section 409A for such
a Participant, the Company may offer (in writing) the
Participant a joint and fifty (50) percent survivor annuity
that is actuarially equivalent for these purposes.




	 	5.	 	Section IV.B of the Plan hereby is amended by adding thereto, immediately
following the language therein, the following:






For Participants who retire after December 31, 2004, with a
retirement benefit subject to Section 409A, the percentage
increase of the cost-of-living increase applied to determine the
amount of the benefit payments payable in any calendar year may
not exceed the percentage increase in a cost-of-living index
(described hereinbelow) for a 12-month period ending in the
calendar year immediately preceding the calendar year in which
the increased benefit amounts will be paid. For this purpose, a
“cost-of-living index” includes any consumer price index that is
based on prices of all items (or all items excluding food and
energy) and issued by the Bureau of Labor Statistics, including
an index for a specific population (such as urban consumers or
urban wage earners and clerical workers) and an index for a
geographic area or areas (such as a given metropolitan area or
state). In lieu of such limit on cost-of-living increases, any
other limit permissible under Section 409A from time-to-time may
be used.




	 	6.	 	Section IV.C of the Plan hereby is amended by adding thereto, immediately
following the language therein, the following:






Such office space and secretarial support shall be determined by
the Company and shall be comparable to that provided to other
former similarly-situated executives of the Company. The amount
of expenses eligible for reimbursement, and in-kind benefits
provided, during a calendar year may not affect the expenses
eligible for reimbursement, or in-kind benefits to be provided,
in any other calendar year. The reimbursement of an eligible
expense shall be made on or before the last day of the calendar
year following the calendar year in which the expense was
incurred. The right to reimbursement or in-kind benefits shall
not be subject to liquidation or exchange for another benefit.
Notwithstanding the foregoing, a Participant retiring after
December 31, 2004, shall pay the fair market value for such
office space and secretarial assistance, and shall not receive
reimbursement for any expenses under this subsection C, during
the six (6)-month period beginning on the date of his Separation
from Service; provided, the Company shall reimburse him for all
such amounts (without interest) upon the six (6)-month
anniversary of the date of the Participant’s Separation from
Service.




	 	7.	 	Section IV.D of the Plan hereby is amended by adding thereto, immediately
following the language therein, the following:






Such coverage shall commence upon their Separation from Service
(or, for Participants who retired before December 31, 2004, their
retirements), and the Company shall pay the premiums therefor on
behalf of such



 









 







Participants. To the extent such medical expense benefits
provided to Participants and their spouses would be
discriminatory under Section 105 of the Internal Revenue Code of
1986, as amended, Participants or their surviving spouses will
have the value of the premiums for such discriminatory benefits
reported as taxable income to them. The amount of expenses
eligible for reimbursement during a calendar year may not affect
the expenses eligible for reimbursement in any other calendar
year. The reimbursement of an eligible expense shall be made on
or before the last day of the calendar year following the
calendar year in which the expense was incurred. The right to
reimbursement shall not be subject to liquidation or exchange for
another benefit.




	 	8.	 	Section IV.E of the Plan hereby is amended by adding thereto, immediately
following the language therein, the following:






Notwithstanding anything in this subsection to the contrary, for
the surviving spouse of a Participant who did not retire on or
before December 31, 2004, the amount, timing and form of her
pre-retirement survivor annuity shall be determined under the
terms of Section A(2)(b) as if the Participant Separated from
Service after selecting the joint and fifty (50) percent survivor
annuity under said subsection and died immediately thereafter,
with the payments to the surviving spouse to commence on the
30th day following the Participant’s date of death.




	 	9.	 	Section V.A of the Plan hereby is amended by adding thereto, immediately
following the language therein, the following:






For Participants who retire after December 31, 2004, the Company
shall not require a level of continued post-employment services
that will result in the Participant failing to have a Separation
from Service upon his retirement from the Company.




	 	10.	 	Section V.E of the Plan hereby is amended by adding thereto, immediately
following the language therein, the following:






Notwithstanding the foregoing, in no event will any amendment to
the Plan result in an acceleration of the timing of benefit
payments or any other changes, inconsistent with the rules,
requirements and restrictions of Section 409A.




	 	11.	 	Section V.H of the Plan hereby is amended by deleting said section in its
entirety and by replacing it with the following:






H. SEPARATION FROM SERVICE.




“Separation from Service” shall mean that a Participant separates
from service with the Company and its affiliates, as defined in
Code Section 409A and guidance issued thereunder. Generally, a
Participant separates from service if the Participant dies,
retires or otherwise has a termination of employment with all
affiliates, determined in accordance with the following:



 









 






	 	(1)	 	Leaves of Absence. The
employment relationship is treated as continuing intact
while the Participant is on military leave, sick leave, or
other bona fide leave of absence if the period of such leave
does not exceed six (6) months, or, if longer, so long as
the Participant retains a right to reemployment with an
affiliate under an applicable statute or by contract. A
leave of absence constitutes a bona fide leave of absence
only while there is a reasonable expectation that the
Participant will return to perform services for an
affiliate. If the period of leave exceeds six (6) months
and the Participant does not retain a right to reemployment
under an applicable statute or by contract, the employment
relationship is deemed to terminate on the first date
immediately following such six (6)-month period.
Notwithstanding the foregoing, where a leave of absence is
due to 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
six (6) months, where such impairment causes the Participant
to be unable to perform the duties of his position of
employment or any substantially similar position of
employment, a twenty-nine (29)-month period of absence shall
be substituted for such six (6)-month period.
	 
	 	(2)	 	Status Change. Generally, if a
Participant performs services both as an employee and an
independent contractor, such Participant must separate from
service both as an employee and as an independent contractor
pursuant to standards set forth in Treasury Regulations, to
be treated as having a Separation from Service. However, if
a Participant provides services to affiliates as an employee
and as a member of the board of directors, the services
provided as a director are not taken into account in
determining whether the Participant has a Separation from
Service as an employee for purposes of the Plan.
	 
	 	(3)	 	Termination of Employment.
Whether a termination of employment has occurred is
determined based on whether the facts and circumstances
indicate that the affiliates and the Participant reasonably
anticipate that (a) no further services will be performed
after a certain date, or (b) the level of bona fide services
the Participant will perform after such date (whether as an
employee or as an independent contractor) will permanently
decrease to less than 50 percent of the average level of
bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding
thirty-six (36)-month period (or the full period of services
to all affiliates if the Participant has been providing
services to all affiliates less than thirty-six (36)
months). Facts and circumstances to be considered in making
this determination include, but are not limited to, whether
the Participant continues to be treated as an employee for
other purposes (such as continuation of salary and
participation in employee benefit programs), whether
similarly situated service providers have been treated
consistently, and whether the Participant is permitted, and
realistically available, to perform services for other
service recipients in the same line of business. For
periods during which a Participant is on a paid bona fide
leave of absence and has not otherwise




 









 






	 	 	 	terminated employment as described in subsection H(1) above,
for purposes of this subsection the Participant is treated
as providing bona fide services at a level equal to the
level of services that the Participant would have been
required to perform to receive the compensation paid with
respect to such leave of absence. Periods during which a
Participant is on an unpaid bona fide leave of absence and
has not otherwise terminated employment are disregarded for
purposes of this subsection (including for purposes of
determining the applicable thirty-six (36)-month (or
shorter) period).






	 	(4)	 	Affiliate. For purposes of
determining whether a Separation from Service has occurred,
the term “affiliate” shall include the Company and all
entities that would be treated as a single employer with the
Company under Sections 414(b) or (c) of the Internal Revenue
Code of 1986, as amended, but substituting “at least 50
percent” instead of “at least 80 percent” each place it
appears in applying such rules.






	 	12.	 	Section V.I of the Plan hereby is amended by deleting said section in its
entirety and by replacing it with the following:






The Plan shall be construed, administered and governed in all
respects in accordance with applicable federal law (including
ERISA) and, to the extent not preempted by federal law, in
accordance with the laws of the State of Georgia.




	 	13.	 	Section V of the Plan hereby is amended by adding thereto, immediately following
the language therein, the following:






K. CLAIMS AND APPEALS.




By this reference, the Plan hereby includes and adopts the claims
and appeals provisions set forth in the Company’s Supplemental
Executive Retirement Plan, and those provisions shall apply under
the Plan as if set forth herein.



     IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this
Amendment on the 8 day of December, 2008.



	 	 	 	 	 	 
	 	Participant	 	 	 	Aflac Incorporated
	 	 
	 	 	 	 
	 	/s/ Daniel P. Amos

	 	By:
	 	/s/ Kriss Cloninger III
	 	 

	 	 	 	 
	 	Daniel P. Amos

	 	 	 	Kriss Cloninger III
	 	 

	 	 	 	President & Chief Financial Officer
	 	 
	 	 	 	 
	 	/s/ Martin Durant

	 	Attest:
	 	/s/ Joey M. Loudermilk
	 	 

	 	 	 	 
	 	Witness

	 	 	 	Joey M. Loudermilk

Corporate Secretary