T
|
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 for the fiscal year ended December 31,
2007
|
£
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OF 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
MISSISSIPPI
|
64-0471500
|
|||
(State
or other jurisdiction of incorporation or organization)
|
(IRS
Employer
Identification Number)
|
|||
248
East Capitol Street, Jackson, Mississippi
|
39201
|
|||
(Address
of principal executive offices)
|
(Zip
Code)
|
|||
Registrant’s
telephone number, including area code:
|
(601)
208-5111
|
Common
Stock, no par value
|
NASDAQ
Stock Market
|
|||
(Title
of Class)
|
(Name
of Exchange on Which Registered)
|
Large accelerated filer
T
|
A
cc
elerated
filer
£
|
Non-accelerated
filer
£
|
Smaller
reporting company
£
|
(Do not check if a smaller reporting company) |
PART
I
|
PAGE
|
|||
PART
II
|
||||
PART
III
|
||||
PART
IV
|
||||
Payment
of Dividends and Other Restrictions
|
Years
Ended December 31,
|
||||||||||||||||||||||||||||||||||||
2007
|
2006
|
2005
|
||||||||||||||||||||||||||||||||||
Average
|
Yield/
|
Average
|
Yield/
|
Average
|
Yield/
|
|||||||||||||||||||||||||||||||
Balance
|
Interest
|
Rate
|
Balance
|
Interest
|
Rate
|
Balance
|
Interest
|
Rate
|
||||||||||||||||||||||||||||
Assets
|
||||||||||||||||||||||||||||||||||||
Interest-earning
assets:
|
||||||||||||||||||||||||||||||||||||
Federal
funds sold and securities purchased under reverse repurchase
agreements
|
$ | 40,850 | $ | 2,147 | 5.26 | % | $ | 26,004 | $ | 1,327 | 5.10 | % | $ | 31,399 | $ | 994 | 3.17 | % | ||||||||||||||||||
Securities
available for sale:
|
||||||||||||||||||||||||||||||||||||
Taxable
|
573,940 | 22,367 | 3.90 | % | 846,718 | 31,565 | 3.73 | % | 1,211,230 | 44,592 | 3.68 | % | ||||||||||||||||||||||||
Nontaxable
|
50,763 | 3,539 | 6.97 | % | 57,720 | 4,028 | 6.98 | % | 62,970 | 4,545 | 7.22 | % | ||||||||||||||||||||||||
Securities
held to maturity:
|
||||||||||||||||||||||||||||||||||||
Taxable
|
195,468 | 9,417 | 4.82 | % | 200,501 | 10,010 | 4.99 | % | 188,133 | 9,639 | 5.12 | % | ||||||||||||||||||||||||
Nontaxable
|
86,030 | 6,404 | 7.44 | % | 93,439 | 7,007 | 7.50 | % | 91,592 | 6,924 | 7.56 | % | ||||||||||||||||||||||||
Loans
(including loans held for sale)
|
6,893,402 | 506,159 | 7.34 | % | 6,297,161 | 438,817 | 6.97 | % | 5,786,560 | 358,458 | 6.19 | % | ||||||||||||||||||||||||
Total
interest-earning assets
|
7,840,453 | 550,033 | 7.02 | % | 7,521,543 | 492,754 | 6.55 | % | 7,371,884 | 425,152 | 5.77 | % | ||||||||||||||||||||||||
Cash
and due from banks
|
287,113 | 327,320 | 336,238 | |||||||||||||||||||||||||||||||||
Other
assets
|
790,636 | 653,549 | 566,756 | |||||||||||||||||||||||||||||||||
Allowance
for loan losses
|
(72,365 | ) | (74,924 | ) | (68,395 | ) | ||||||||||||||||||||||||||||||
Total
Assets
|
$ | 8,845,837 | $ | 8,427,488 | $ | 8,206,483 | ||||||||||||||||||||||||||||||
Liabilities
and Shareholders' Equity
|
||||||||||||||||||||||||||||||||||||
Interest-bearing
liabilities:
|
||||||||||||||||||||||||||||||||||||
Interest-bearing
demand deposits
|
$ | 1,186,683 | 39,217 | 3.30 | % | $ | 1,003,649 | 26,875 | 2.68 | % | $ | 1,088,107 | 15,275 | 1.40 | % | |||||||||||||||||||||
Savings
deposits
|
1,708,378 | 38,977 | 2.28 | % | 1,677,921 | 31,037 | 1.85 | % | 1,262,059 | 10,692 | 0.85 | % | ||||||||||||||||||||||||
Time
deposits
|
2,625,327 | 122,181 | 4.65 | % | 2,367,263 | 95,928 | 4.05 | % | 1,992,358 | 55,993 | 2.81 | % | ||||||||||||||||||||||||
Federal
funds purchased and securities sold under repurchase
agreements
|
447,438 | 20,224 | 4.52 | % | 471,386 | 20,228 | 4.29 | % | 668,389 | 19,138 | 2.86 | % | ||||||||||||||||||||||||
Short-term
borrowings
|
269,102 | 13,723 | 5.10 | % | 520,942 | 25,965 | 4.98 | % | 892,570 | 32,656 | 3.66 | % | ||||||||||||||||||||||||
Long-term
FHLB advances
|
- | - | - | 2,825 | 104 | 3.68 | % | 159,103 | 5,502 | 3.46 | % | |||||||||||||||||||||||||
Subordinated
notes
|
49,692 | 2,894 | 5.82 | % | 2,586 | 138 | 5.34 | % | - | - | - | |||||||||||||||||||||||||
Junior
subordinated debt securities
|
70,104 | 5,144 | 7.34 | % | 25,895 | 1,900 | 7.34 | % | - | - | - | |||||||||||||||||||||||||
Total
interest-bearing liabilities
|
6,356,724 | 242,360 | 3.81 | % | 6,072,467 | 202,175 | 3.33 | % | 6,062,586 | 139,256 | 2.30 | % | ||||||||||||||||||||||||
Noninterest-bearing
demand deposits
|
1,455,494 | 1,417,470 | 1,310,597 | |||||||||||||||||||||||||||||||||
Other
liabilities
|
130,244 | 136,674 | 90,353 | |||||||||||||||||||||||||||||||||
Shareholders'
equity
|
903,375 | 800,877 | 742,947 | |||||||||||||||||||||||||||||||||
Total
Liabilities and Shareholders' Equity
|
$ | 8,845,837 | $ | 8,427,488 | $ | 8,206,483 | ||||||||||||||||||||||||||||||
Net
Interest Margin
|
307,673 | 3.92 | % | 290,579 | 3.86 | % | 285,896 | 3.88 | % | |||||||||||||||||||||||||||
Correction
of accounting error
|
2,628 | - | - | |||||||||||||||||||||||||||||||||
Less
tax equivalent adjustments:
|
||||||||||||||||||||||||||||||||||||
Investments
|
3,480 | 3,862 | 4,014 | |||||||||||||||||||||||||||||||||
Loans
|
6,038 | 6,146 | 5,441 | |||||||||||||||||||||||||||||||||
Net
Interest Margin per Annual Report
|
$ | 300,783 | $ | 280,571 | $ | 276,441 |
2007 Compared to 2006
|
2006 Compared to 2005
|
|||||||||||||||||||||||
Increase (Decrease) Due To:
|
Increase (Decrease) Due To:
|
|||||||||||||||||||||||
Yield/
|
Yield/
|
|||||||||||||||||||||||
Volume
|
Rate
|
Net
|
Volume
|
Rate
|
Net
|
|||||||||||||||||||
Interest
earned on:
|
||||||||||||||||||||||||
Federal
funds sold and securities purchased under reverse repurchase
agreements
|
$ | 777 | $ | 43 | $ | 820 | $ | (193 | ) | $ | 526 | $ | 333 | |||||||||||
Securities
available for sale:
|
||||||||||||||||||||||||
Taxable
|
(10,580 | ) | 1,382 | (9,198 | ) | (13,624 | ) | 597 | (13,027 | ) | ||||||||||||||
Nontaxable
|
(483 | ) | (6 | ) | (489 | ) | (370 | ) | (147 | ) | (517 | ) | ||||||||||||
Securities
held to maturity:
|
||||||||||||||||||||||||
Taxable
|
(251 | ) | (342 | ) | (593 | ) | 621 | (250 | ) | 371 | ||||||||||||||
Nontaxable
|
(548 | ) | (55 | ) | (603 | ) | 139 | (56 | ) | 83 | ||||||||||||||
Loans
(including loans held for sale)
|
43,150 | 24,192 | 67,342 | 33,096 | 47,263 | 80,359 | ||||||||||||||||||
Total
interest-earning assets
|
32,065 | 25,214 | 57,279 | 19,669 | 47,933 | 67,602 | ||||||||||||||||||
Interest
paid on:
|
||||||||||||||||||||||||
Interest-bearing
demand deposits
|
5,440 | 6,902 | 12,342 | (1,272 | ) | 12,872 | 11,600 | |||||||||||||||||
Savings
deposits
|
575 | 7,365 | 7,940 | 4,452 | 15,893 | 20,345 | ||||||||||||||||||
Time
deposits
|
11,129 | 15,124 | 26,253 | 11,939 | 27,996 | 39,935 | ||||||||||||||||||
Federal
funds purchased and
securities
sold under
|
||||||||||||||||||||||||
repurchase
agreements
|
(1,057 | ) | 1,053 | (4 | ) | (6,685 | ) | 7,775 | 1,090 | |||||||||||||||
Short-term
borrowings
|
(12,852 | ) | 610 | (12,242 | ) | (16,212 | ) | 9,521 | (6,691 | ) | ||||||||||||||
Long-term
FHLB advances
|
(104 | ) | - | (104 | ) | (5,727 | ) | 329 | (5,398 | ) | ||||||||||||||
Subordinated
notes
|
2,536 | 220 | 2,756 | 138 | - | 138 | ||||||||||||||||||
Junior
subordinated debt securities
|
3,244 | - | 3,244 | 1,900 | - | 1,900 | ||||||||||||||||||
Total
interest-bearing liabilities
|
8,911 | 31,274 | 40,185 | (11,467 | ) | 74,386 | 62,919 | |||||||||||||||||
Change
in net interest income on a tax equivalent basis
|
$ | 23,154 | $ | (6,060 | ) | $ | 17,094 | $ | 31,136 | $ | (26,453 | ) | $ | 4,683 |
2007
|
2006
|
2005
|
||||||||||
Securities
purchased under reverse repurchase agreements:
|
||||||||||||
Maximum
amount outstanding at any month end during each period
|
$ | - | $ | - | $ | 30,000 | ||||||
Average
amount outstanding at end of period
|
$ | - | $ | 83 | $ | 7,000 |
December
31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Securities
available for sale
|
||||||||||||
U.S.
Treasury and other U.S. Government agencies
|
$ | 8,005 | $ | 11,444 | $ | 8,942 | ||||||
Obligations
of states and political subdivisions
|
45,704 | 56,839 | 61,973 | |||||||||
Mortgage-backed
securities
|
318,815 | 607,651 | 812,049 | |||||||||
Corporate
debt securities
|
70,971 | 93,735 | 120,603 | |||||||||
Total
debt securities
|
443,495 | 769,669 | 1,003,567 | |||||||||
Other
securities including equity
|
- | - | 13,725 | |||||||||
Total
securities available for sale
|
$ | 443,495 | $ | 769,669 | $ | 1,017,292 | ||||||
Securities
held to maturity
|
||||||||||||
Obligations
of states and political subdivisions
|
$ | 114,497 | $ | 129,879 | $ | 131,403 | ||||||
Mortgage-backed
securities
|
160,473 | 162,245 | 163,386 | |||||||||
Other
securities
|
126 | 119 | 113 | |||||||||
Total
securities held to maturity
|
$ | 275,096 | $ | 292,243 | $ | 294,902 |
Maturing
|
||||||||||||||||||||||||||||||||||||
After One,
|
After Five,
|
|||||||||||||||||||||||||||||||||||
Within
|
But Within
|
But Within
|
After
|
|||||||||||||||||||||||||||||||||
One Year
|
Yield
|
Five Years
|
Yield
|
Ten Years
|
Yield
|
Ten Years
|
Yield
|
Total
|
||||||||||||||||||||||||||||
Securities
available for sale
|
||||||||||||||||||||||||||||||||||||
U.S.
Treasury and other U.S.Government agencies
|
$ | 8,005 | 3.82 | % | $ | - | - | $ | - | - | $ | - | - | $ | 8,005 | |||||||||||||||||||||
Obligations
of states and political subdivisions
|
21,925 | 7.98 | % | 12,240 | 5.39 | % | 10,285 | 6.05 | % | 1,254 | 7.16 | % | 45,704 | |||||||||||||||||||||||
Mortgage-backed
securities
|
91 | 6.40 | % | 16,444 | 3.65 | % | 61,213 | 3.42 | % | 241,067 | 3.91 | % | 318,815 | |||||||||||||||||||||||
Corporate
debt securities
|
26,116 | 3.72 | % | 44,855 | 4.17 | % | - | - | - | - | 70,971 | |||||||||||||||||||||||||
Total
securities available for sale
|
$ | 56,137 | 5.40 | % | $ | 73,539 | 4.26 | % | $ | 71,498 | 3.80 | % | $ | 242,321 | 3.93 | % | 443,495 | |||||||||||||||||||
Securities
held to maturity
|
||||||||||||||||||||||||||||||||||||
Obligations
of states and political subdivisions
|
$ | 16,925 | 4.98 | % | $ | 36,727 | 7.05 | % | $ | 51,483 | 7.50 | % | $ | 9,362 | 6.80 | % | $ | 114,497 | ||||||||||||||||||
Mortgage-backed
securities
|
- | - | - | - | - | - | 160,473 | 4.55 | % | 160,473 | ||||||||||||||||||||||||||
Other
securities
|
- | - | - | - | 126 | 5.72 | % | - | - | 126 | ||||||||||||||||||||||||||
Total
securities held to maturity
|
$ | 16,925 | 4.98 | % | $ | 36,727 | 7.05 | % | $ | 51,609 | 7.50 | % | $ | 169,835 | 4.67 | % | $ | 275,096 |
December
31,
|
||||||||||||||||||||
2007
|
2006
|
2005
|
2004
|
2003
|
||||||||||||||||
Real
estate loans:
|
||||||||||||||||||||
Construction,
land development and other land loans
|
$ | 1,194,940 | $ | 896,254 | $ | 715,174 | $ | 661,808 | $ | 552,038 | ||||||||||
Secured
by 1-4 family residential properties
|
1,842,265 | 1,938,261 | 2,048,132 | 1,783,471 | 1,624,123 | |||||||||||||||
Secured
by nonfarm, nonresidential properties
|
1,325,379 | 1,326,658 | 1,061,669 | 893,836 | 850,193 | |||||||||||||||
Other
real estate loans
|
167,610 | 148,921 | 166,685 | 156,140 | 171,610 | |||||||||||||||
Loans
to finance agricultural production and other loans to
farmers
|
23,692 | 23,938 | 40,162 | 29,885 | 30,815 | |||||||||||||||
Commercial
and industrial
|
1,283,014 | 1,106,460 | 861,167 | 865,436 | 787,094 | |||||||||||||||
Consumer
|
1,087,337 | 934,261 | 880,868 | 802,334 | 777,236 | |||||||||||||||
Obligations
of states and political subdivisions
|
228,330 | 233,666 | 230,214 | 193,951 | 184,827 | |||||||||||||||
Loans
for purchasing or carrying securities
|
4,949 | 8,110 | 5,204 | 9,799 | 10,080 | |||||||||||||||
Other
loans
|
30,784 | 41,999 | 51,004 | 50,346 | 56,127 | |||||||||||||||
Loans
(including loans held for sale)
|
$ | 7,188,300 | $ | 6,658,528 | $ | 6,060,279 | $ | 5,447,006 | $ | 5,044,143 |
Maturing
|
||||||||||||||||
Within
One Year
or Less
|
One Year
Through
Five
Years
|
After
Five
Years
|
Total
|
|||||||||||||
Construction,
land development and other land loans
|
$ | 941,360 | $ | 197,958 | $ | 55,622 | $ | 1,194,940 | ||||||||
Other
loans secured by real estate (excluding loans secured by 1-4 family
residential properties)
|
501,356 | 764,822 | 226,811 | 1,492,989 | ||||||||||||
Commercial
and industrial
|
741,124 | 462,110 | 79,780 | 1,283,014 | ||||||||||||
Other
loans (excluding consumer)
|
53,867 | 70,348 | 163,540 | 287,755 | ||||||||||||
Total
|
$ | 2,237,707 | $ | 1,495,238 | $ | 525,753 | $ | 4,258,698 |
Maturing
|
||||||||||||
One Year
Through
Five
Years
|
After
Five
Years
|
Total
|
||||||||||
Above
loans due after one year which have:
|
||||||||||||
Predetermined
interest rates
|
$ | 1,444,467 | $ | 432,286 | $ | 1,876,753 | ||||||
Floating
interest rates
|
50,771 | 93,467 | 144,238 | |||||||||
Total
|
$ | 1,495,238 | $ | 525,753 | $ | 2,020,991 |
December
31,
|
||||||||||||||||||||
2007
|
2006
|
2005
|
2004
|
2003
|
||||||||||||||||
Nonperforming
Assets
|
||||||||||||||||||||
Loans
accounted for on a nonaccrual basis
|
$ | 65,173 | $ | 36,399 | $ | 28,914 | $ | 21,864 | $ | 23,921 | ||||||||||
Other
real estate (ORE)
|
8,348 | 2,509 | 4,107 | 5,615 | 5,929 | |||||||||||||||
Total
nonperforming assets
|
$ | 73,521 | $ | 38,908 | $ | 33,021 | $ | 27,479 | $ | 29,850 |
Past
Due Loans
|
||||||||||||||||||||
Loans
past due over 90 days
|
$ | 4,853 | $ | 2,957 | $ | 2,719 | $ | 5,284 | $ | 2,606 | ||||||||||
Serviced
GNMA loans eligible for repurchase
|
11,847 | 8,510 | 22,769 | - | - | |||||||||||||||
Total
loans past due over 90 days
|
$ | 16,700 | $ | 11,467 | $ | 25,488 | $ | 5,284 | $ | 2,606 | ||||||||||
Nonperforming
assets/total loans and ORE
|
1.02 | % | 0.59 | % | 0.56 | % | 0.51 | % | 0.59 | % |
Years
Ended December 31,
|
||||||||||||||||||||
2007
|
2006
|
2005
|
2004
|
2003
|
||||||||||||||||
Balance
at beginning of period
|
$ | 72,098 | $ | 76,691 | $ | 64,757 | $ | 74,276 | $ | 74,771 | ||||||||||
Loans
charged off:
|
||||||||||||||||||||
Real
estate loans
|
(8,678 | ) | (1,511 | ) | (2,770 | ) | (3,009 | ) | (2,863 | ) | ||||||||||
Loans
to finance agricultural production and other loans to
farmers
|
(297 | ) | (3 | ) | (14 | ) | (19 | ) | (60 | ) | ||||||||||
Commercial
and industrial
|
(2,136 | ) | (1,670 | ) | (2,978 | ) | (1,178 | ) | (3,688 | ) | ||||||||||
Consumer
|
(10,207 | ) | (7,740 | ) | (8,147 | ) | (7,949 | ) | (9,605 | ) | ||||||||||
All
other loans
|
(5,472 | ) | (4,014 | ) | (2,913 | ) | (3,247 | ) | (2,992 | ) | ||||||||||
Total
charge-offs
|
(26,790 | ) | (14,938 | ) | (16,822 | ) | (15,402 | ) | (19,208 | ) | ||||||||||
Recoveries
on loans previously charged off:
|
||||||||||||||||||||
Real
estate loans
|
57 | 152 | 135 | 30 | 79 | |||||||||||||||
Loans
to finance agricultural production and other loans to
farmers
|
- | - | - | - | - | |||||||||||||||
Commercial
and industrial
|
1,356 | 1,729 | 1,006 | 1,029 | 735 | |||||||||||||||
Consumer
|
5,944 | 6,130 | 5,300 | 5,324 | 5,612 | |||||||||||||||
All
other loans
|
3,402 | 2,955 | 2,774 | 2,555 | 2,516 | |||||||||||||||
Total
recoveries
|
10,759 | 10,966 | 9,215 | 8,938 | 8,942 | |||||||||||||||
Net
charge-offs
|
(16,031 | ) | (3,972 | ) | (7,607 | ) | (6,464 | ) | (10,266 | ) | ||||||||||
Provision
for loan losses
|
23,784 | (5,938 | ) | 19,541 | (3,055 | ) | 9,771 | |||||||||||||
Allowance
of acquired bank
|
- | 5,317 | - | - | - | |||||||||||||||
Balance
at end of period
|
$ | 79,851 | $ | 72,098 | $ | 76,691 | $ | 64,757 | $ | 74,276 | ||||||||||
Percentage
of net charge-offs during period to average loans outstanding during the
period
|
0.23 | % | 0.06 | % | 0.13 | % | 0.12 | % | 0.21 | % |
3
months or less
|
$ | 356,114 | ||
Over
3 months through 6 months
|
283,136 | |||
Over
6 months through 12 months
|
286,496 | |||
Over
12 months
|
103,497 | |||
Total
|
$ | 1,029,243 |
2007
|
2006
|
2005
|
||||||||||
Return
on average assets
|
1.23 | % | 1.42 | % | 1.25 | % | ||||||
Return
on average equity
|
12.02 | % | 14.89 | % | 13.86 | % | ||||||
Dividend
payout ratio
|
47.34 | % | 40.28 | % | 44.51 | % | ||||||
Average
equity to average assets ratio
|
10.21 | % | 9.50 | % | 9.16 | % |
2007
|
2006
|
2005
|
||||||||||
Federal
funds purchased and securities sold under repurchase
agreements:
|
||||||||||||
Amount
outstanding at end of period
|
$ | 460,763 | $ | 470,434 | $ | 492,853 | ||||||
Weighted-average
interest rate at end of period
|
3.30 | % | 4.50 | % | 3.31 | % | ||||||
Maximum
amount outstanding at any month end during each period
|
$ | 525,142 | $ | 505,627 | $ | 770,273 | ||||||
Average
amount outstanding during each period
|
$ | 447,438 | $ | 471,386 | $ | 668,389 | ||||||
Weighted-average
interest rate during each period
|
4.52 | % | 4.29 | % | 2.86 | % | ||||||
Short-term
borrowings:
|
||||||||||||
Amount
outstanding at end of period
|
$ | 474,354 | $ | 271,067 | $ | 775,402 | ||||||
Weighted-average
interest rate at end of period
|
4.30 | % | 5.14 | % | 4.24 | % | ||||||
Maximum
amount outstanding at any month end during each period
|
$ | 526,879 | $ | 692,295 | $ | 1,271,250 | ||||||
Average
amount outstanding during each period
|
$ | 269,102 | $ | 520,942 | $ | 892,570 | ||||||
Weighted-average
interest rate during each period
|
5.10 | % | 4.98 | % | 3.66 | % |
Period
|
Total
Number of Shares Purchased
|
Average Price
Paid Per Share
|
Total
Number of Shares Purchased as Part of Publicly Announced
Plans or Programs
|
Maximum
Number of Shares that May Yet be Purchased Under the
Plans or Programs
|
||||||||||||
October
1, 2007 through
|
||||||||||||||||
October
31, 2007
|
- | $ | - | - | 1,370,581 | |||||||||||
November
1, 2007 through
|
||||||||||||||||
November
30, 2007
|
- | $ | - | - | 1,370,581 | |||||||||||
December
1, 2007 through
|
||||||||||||||||
December
31, 2007
|
- | $ | - | - | 1,370,581 | |||||||||||
Total
|
- | - |
Plan
Category
|
Number
of securities to be issued upon exercise of outstanding options, warrants
and rights (a)
|
Weighted
average exercise price of outstanding options, warrants and
rights
|
Number
of securities remaining available for future issuance under equity
compensations plans (excluding (a))
|
|||||||||
Approved
by security holders
|
1,954,360 | $ | 25.42 | 5,553,832 | ||||||||
Not
approved by security holders
|
- | - | - | |||||||||
Total
|
1,954,360 | $ | 25.42 | 5,553,832 |
BY:
|
/s/ Richard G.
Hickson
|
BY:
|
/s/ Louis E.
Greer
|
|
Richard
G. Hickson
|
Louis
E. Greer
|
|||
Chairman
of the Board, President
|
Treasurer and
Principal
|
|||
&
Chief Executive Officer
|
Financial
Officer
|
|||
DATE:
|
February
29, 2008
|
DATE:
|
February
29, 2008
|
DATE:
|
February
29, 2008
|
BY:
|
/s/ J. Kelly
Allgood
|
|
J.
Kelly Allgood, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ Reuben V.
Anderson
|
|
Reuben
V. Anderson, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ Adolphus B.
Baker
|
|
Adolphus
B. Baker, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ William C.
Deviney, Jr.
|
|
William
C. Deviney, Jr., Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ C. Gerald
Garnett
|
|
C.
Gerald Garnett, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ Daniel A.
Grafton
|
|
Daniel
A. Grafton, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ Richard G.
Hickson
|
|
Richard
G. Hickson, Chairman, President,
|
||||
Chief
Executive Officer and Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ John M.
McCullouch
|
|
John
M. McCullouch, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ Richard H.
Puckett
|
|
Richard
H. Puckett, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ R. Michael
Summerford
|
|
R.
Michael Summerford, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ Kenneth W.
Williams
|
|
Kenneth
W. Williams, Director
|
||||
DATE:
|
February
29, 2008
|
BY:
|
/s/ William G. Yates,
Jr.
|
|
William
G. Yates, Jr., Director
|
2-a
|
Agreement
and Plan of Reorganization by and among Trustmark Corporation and Republic
Bancshares of Texas, Inc.
Filed April 17,
2006, as Exhibit 2.1 to Trustmark’s Form 8-K Current Report, incorporated
herein by reference.
|
|
2-b
|
First
Amendment to Agreement and Plan of Reorganization by and among Trustmark
Corporation and Republic Bancshares of Texas, Inc. Filed May
17, 2006. as Exhibit 2.1A to Trustmark’s Form 8-K Current Report,
incorporated herein by reference.
|
|
3-a
|
Articles
of Incorporation, as amended, effective April 9, 2002. Filed as
Exhibit A to Trustmark Corporation’s Proxy Statement (Schedule 14A) for
the Annual Meeting of Shareholders held April 9, 2002, incorporated herein
by reference.
|
|
3-b
|
Bylaws,
as amended, effective July 17, 2007. Filed as Exhibit 3.2 to
Trustmark Corporation’s Form 10-Q Quarterly Report for the quarterly
period ended June 30, 2007, incorporated herein by reference
.
|
|
4-a
|
Amended
and Restated Trust Agreement among Trustmark Corporation, Wilmington Trust
Company and the Administrative Trustees regarding Trustmark Preferred
Capital Trust I. Filed August 21, 2006, as Exhibit 4.1 to
Trustmark’s Form 8-K Current Report, incorporated herein by
reference.
|
|
4-b
|
Junior
Subordinated Indenture between Trustmark Corporation and Wilmington Trust
Company. Filed August 21, 2006, as Exhibit 4.2 to Trustmark’s
Form 8-K Current Report, incorporated herein by
reference.
|
|
4-c
|
Guarantee
Agreement between Trustmark Corporation and Wilmington Trust
Company. Filed August 21, 2006, as Exhibit 4.3 to Trustmark’s
Form 8-K Current Report, incorporated herein by
reference.
|
|
4-d
|
Fiscal
and Paying Agency Agreement between Trustmark National Bank and The Bank
of New York Trust Company, N.A. regarding Subordinated Notes due December
15, 2016. Filed December 13, 2006, as Exhibit 4.1 to
Trustmark’s Form 8-K Current Report, incorporated herein by
reference.
|
|
10-a
|
Deferred
Compensation Plan for Executive Officers (Executive Deferral Plan-Group 2)
of Trustmark National Bank, as amended. Filed as Exhibit 10-a
to Trustmark’s Form 10-K Annual Report for the year ended December 31,
2007.
|
|
10-b
|
Deferred
Compensation Plan for Directors of First National Financial Corporation
acquired October 7, 1994. Filed as Exhibit 10-c to Trustmark’s
Form 10-K Annual Report for the year ended December 31, 1994, incorporated
herein by reference.
|
|
10-c
|
Life
Insurance Plan for Executive Officers of First National Financial
Corporation acquired October 7, 1994. Filed as Exhibit 10-d to
Trustmark’s Form 10-K Annual Report for the year ended December 31, 1994,
incorporated herein by reference.
|
|
10-d
|
Long
Term Incentive Plan for key employees of Trustmark Corporation and its
subsidiaries approved March 11, 1997. Filed as Exhibit 10-e to
Trustmark’s Form 10-K Annual Report for the year ended December 31, 1996,
incorporated herein by reference.
|
|
10-e
|
Deferred
Compensation Plan for Directors (Directors’ Deferred Fee Plan) of
Trustmark National Bank, as amended. Filed as Exhibit 10-e to
Trustmark’s Form 10-K Annual Report for the year ended December 31,
2007.
|
|
10-f
|
Deferred
Compensation Plan for Executives (Executive Deferral Plan-Group 1) of
Trustmark National Bank, as amended. Filed as Exhibit 10-f to
Trustmark’s Form 10-K Annual Report for the year ended December 31,
2007.
|
|
10-g
|
Trustmark
Corporation Deferred Compensation Plan (Master Plan Document), as amended.
Filed as Exhibit 10-g to Trustmark’s Form 10-K Annual Report for the year
ended December 31, 2007.
|
|
10-h
|
Amended
and Restated Employment Agreement between Trustmark Corporation and
Richard G. Hickson dated October 23, 2007. Filed as Exhibit
10-h to Trustmark’s Form 10-K Annual Report for the year ended December
31, 2007.
|
|
10-i
|
Amended
and Restated Change in Control Agreement between Trustmark Corporation and
Gerard R. Host dated October 23, 2007. Filed as Exhibit 10-i to
Trustmark’s Form 10- K Annual Report for the year ended December 31,
2007.
|
|
10-j
|
Amended
and Restated Change in Control Agreement between Trustmark Corporation and
Harry M. Walker dated October 23, 2007. Filed as Exhibit 10-j
to Trustmark’s Form 10- K Annual Report for the year ended December 31,
2007.
|
|
10-k
|
2005
Stock and Incentive Compensation Plan approved May 10,
2005. Filed as Exhibit 10-a to Trustmark’s Form 10-Q Quarterly
Report for the quarter ended March 31, 2005, incorporated by
reference.
|
|
10-l
|
Form
of Restricted Stock Agreement (under the 2005 Stock and Incentive
Compensation Plan). Filed May 16, 2005, as Exhibit 10-b to
Trustmark’s Form 8-K Current Report, incorporated herein by
reference.
|
10-m
|
Form
of Non-Qualified Stock Option Agreement for Director (under the
2005 Stock and Incentive Compensation Plan). Filed May 16,
2005, as Exhibit 10-c to Trustmark’s Form 8-K Current Report, incorporated
herein by reference.
|
|
10-n
|
Form
of Non-Qualified Stock Option Agreement for Associate (under
the 2005 Stock and Incentive Compensation Plan). ). Filed May
16, 2005, as Exhibit 10-d to Trustmark’s Form 8-K Current Report,
incorporated herein by reference.
|
|
10-o
|
Termination
Amendment to the Second Amended Trustmark Corporation 1997 Long Term
Incentive Plan. File May 16, 2005, as Exhibit 10-e to
Trustmark’s Form 8-K Current Report, incorporated herein by
reference.
|
|
10-p
|
Revised
Form of Restricted Stock Agreement (under the 2005 Stock and Incentive
Compensation Plan). Filed January 31, 2006, as Exhibit 10-b to
Trustmark’s Form 8-K Current Report, incorporated herein by
reference.
|
|
10-q
|
Form
of Time-Based Restricted Stock Agreement (under the 2005 Stock and
Incentive Compensation Plan). Filed January 28, 2008, as
Exhibit 10-q to Trustmark’s Form 8-K Current Report, incorporated herein
by reference.
|
|
13
|
Only
those portions of the Registrant’s 2007 Annual Report to Shareholders
expressly incorporated by reference herein are included in this exhibit
and, therefore, are filed as a part of this report on Form
10-K.
|
|
21
|
List
of Subsidiaries.
|
|
23
|
Consent
of KPMG LLP.
|
|
31-a
|
Certification
by Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
|
|
31-b
|
Certification
by Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
|
|
32-a
|
Certification
by Chief Executive Officer pursuant to 18 U.S.C. ss.
1350.
|
|
32-b
|
Certification by Chief Financial
Officer pursuant to 18 U.S.C. ss. 1350
.
|
|
All
other exhibits are omitted, as they are inapplicable or not required by
the related instructions.
|
1.1
|
Definitions
. For
purposes of this Plan, the following phrases or terms shall have the
indicated meanings unless otherwise clearly apparent from the
context:
|
|
(a)
|
"
Actuarially
Reduced
" shall mean the present value of Participant's Retirement
Benefit as set forth in Item 3(a) of his or her Plan Agreement at the
time of Participant's Early Retirement Date (or other applicable time)
using a discount rate equal to the Aa Corporate Bond Rate as published by
Moody's Investors Services, Inc. or its successor as of the date of Early
Retirement (or other applicable
date).
|
|
(b)
|
"
Bank
" shall
mean
Trustmark National
Bank, Jackson, Mississippi
and any Subsidiary that duly adopts the
Plan as provided in Article XIV hereof. Where the context
dictates, the term "Bank" as used herein refers to the particular Bank
that has entered into a Plan Agreement with a particular
Participant.
|
|
(c)
|
"
Beneficiary
"
shall mean the person, persons or estate of a Participant, entitled to
receive any benefits subsequent to the death of a Participant under a Plan
Agreement entered into in accordance with the terms of this
Plan.
|
|
(d)
|
"
Beneficiary
Designation
" shall mean the form of written agreement, attached
hereto as Annex II, by which the Participant names the Beneficiary(ies) of
the Plan.
|
|
(e)
|
"
Board of
Directors
" shall mean the Board of Directors of
Trustmark National Bank,
Jackson, Mississippi
unless otherwise indicated or the context
otherwise requires.
|
|
(f)
|
"
Code
" shall
mean the Internal Revenue Code of 1986, as the same may be amended from
time to time, or the corresponding Section of any subsequent Internal
Revenue Code, and, to the extent not inconsistent therewith, regulations
issued thereunder.
|
|
(g)
|
"
Committee
"
shall mean the Human Resources Committee of the Board of Directors of the
Holding Company (or any successor committee thereto) or any other
committee appointed by the Board of Directors of the Bank in lieu thereof
to manage and administer the Plan and individual Plan Agreements in
accordance with the provisions of Article XII
hereof.
|
|
(h)
|
"
Covered Salary
"
shall mean the amount specified in Item 1 of the Plan Agreement that
is used as a basis for computation of Participant's Death and Retirement
Benefits pursuant to the terms and conditions of the
Plan.
|
|
(i)
|
"
Death Benefit
"
shall mean the benefit provided under Article III of the
Plan.
|
|
(j)
|
"
Disability" or
"Disabled
" shall mean that a Participant is disabled as provided in
Section 3.8.
|
|
(k)
|
"
Early Retirement
Date
" shall be the first day of the month next following the date
of a Participant's Retirement prior to his or her Normal Retirement Date
and following the month in which the Participant attains his or her
fifty-fifth (55th) birthday and has completed five (5) full years of
continuous employment as an Employee of the Bank commencing on the date of
his or her commencement of participation in the
Plan.
|
|
(l)
|
"
Election to
Participate
" shall mean the form of written agreement that will be
executed and entered into between a Participant and the Bank specifying
the amount of annual compensation to be deferred immediately following the
date of execution of said "Election to Participate" and continuing
thereafter under the terms of the
Plan.
|
|
(m)
|
"
Employee
" shall
mean any person who is in the full time employment of the Bank or a
Subsidiary, as determined by the personnel rules and practices of the Bank
or the Subsidiary.
|
|
(n)
|
“
Employer(s)
”
shall be defined as follows:
|
|
(1)
|
Except
as otherwise provided in part (2) below, the term “Employer” shall mean
the Bank and/or any Subsidiary (now in existence or hereafter formed or
acquired) that duly adopts the Plan as provided in Article XIV
hereof.
|
|
(2)
|
For
the purpose of determining whether a Participant has experienced a
Separation from Service, the term “Employer” shall
mean:
|
|
(A)
|
The
entity for which the Participant performs services and with respect to
which the legally binding right to compensation deferred or contributed
under this Plan arises; and
|
|
(B)
|
All
other entities with which the entity described above would be aggregated
and treated as a single employer under Code Section 414(b)
(controlled group of corporations) and Code Section 414(c) (a group
of trades or businesses, whether or not incorporated, under common
control), as applicable. In order to identify the group of
entities described in the preceding sentence, the Committee shall use an
ownership threshold of at least eighty percent (80%) when applying, the
applicable provisions of (i) Code Section 1563 for determining a
controlled group of corporations under Code Section 414(b), and (ii)
Treas. Reg. §1.414(c)-2 for determining the trades or businesses that are
under common control under Code
Section 414(c).
|
|
(o)
|
“
ERISA
” shall
mean the Employee Retirement Income Security Act of 1974, as it may be
amended from time to time, and, to the extent not inconsistent therewith,
regulations issued thereunder.
|
|
(p)
|
"
Holding
Company
" shall mean Trustmark
Corporation.
|
|
(q)
|
"
Just Cause
"
shall mean theft, fraud, embezzlement or willful misconduct causing
significant property damage to the Bank, the Holding Company or any
Subsidiary or personal injury to another
employee.
|
|
(r)
|
"
Normal Retirement
Date
" shall be the first day of the month following the month in
which the Participant attains his or her sixty-fifth (65th)
birthday.
|
|
(s)
|
"
Participant
"
shall mean an Employee who is selected and elects to participate in the
Plan through the execution of a Plan Agreement in accordance with the
provisions of Article II.
|
|
(t)
|
"
Plan
" shall
mean the Executive Deferral Plan of
Trustmark National Bank,
Jackson, Mississippi
as amended from time to
time.
|
|
(u)
|
"
Plan Agreement
"
shall mean the form of written agreement, attached hereto as Annex I,
which is entered into from time to time by and between the Bank and an
Employee selected to become a Participant as a condition to participation
in the Plan. Each Plan Agreement executed by a Participant
shall provide for the entire benefit to which such Participant is entitled
under the Plan, and the Plan Agreement bearing the latest date shall
govern such entitlement.
|
|
(v)
|
"
Retirement
" and
"
Retire
"
shall mean severance of employment with the Bank at or after the
attainment of his or her Normal Retirement Date (sometimes referred to as
“Normal Retirement”) or, if earlier, at or after attainment of his or her
Early Retirement Date (sometimes referred to as “Early Retirement”), in
either case where Just Cause does not
exist.
|
|
(w)
|
"
Retirement
Benefit
" shall mean the benefit provided under Article IV of
the Plan.
|
|
(x)
|
“
Separation from
Service
” or “
Separate from
Service
” shall mean a termination of services provided by a
Participant to his or her Employer, whether voluntarily or involuntarily,
other than by reason of death or Disability, as determined by the
Committee in accordance with Treas. Reg. §1.409A-1(h). In
determining whether a Participant has experienced a Separation from
Service, the following provisions shall
apply:
|
|
|
(1)
|
For
a Participant who provides services to an Employer as an employee, except
as otherwise provided in part (3) below, a Separation from Service shall
occur when such Participant has experienced a termination of employment
with such Employer. A Participant shall be considered to have
experienced a termination of employment when the facts and circumstances
indicate that the Participant and his or her Employer reasonably
anticipate that either (i) no further services will be performed for the
Employer after a certain date, or (ii) that the level of bona fide
services the Participant will perform for the Employer after such date
(whether as an employee or as an independent contractor) will permanently
decrease to less than fifty percent (50%) of the average level of bona
fide services performed by such Participant (whether as an Employee or an
independent contractor) over the immediately preceding thirty-six (36)
month period (or the full period of services to the Employer if the
Participant has been providing services to the Employer less than
thirty-six (36) months).
|
|
If
a Participant is on military leave, sick leave, or other bona fide leave
of absence, the employment relationship between the Participant and the
Employer shall be treated as continuing intact, provided that the period
of such leave does not exceed 6 months, or if longer, so long as the
Participant retains a right to reemployment with the Employer under an
applicable statute or by contract. If the period of a military
leave, sick leave, or other bona fide leave of absence exceeds 6 months
and the Participant does not retain a right to reemployment under an
applicable statute or by contract, the employment relationship shall be
considered to be terminated for purposes of this Plan as of the first day
immediately following the end of such 6-month period. In
applying the provisions of this paragraph, a leave of absence shall be
considered a bona fide leave of absence only if there is a reasonable
expectation that the Participant will return to perform services for the
Employer.
|
|
(2)
|
For
a Participant who provides services to an Employer as an independent
contractor, except as otherwise provided in part (3) below, a Separation
from Service shall occur upon the expiration of the contract (or in the
case of more than one contract, all contracts) under which services are
performed for such Employer, provided that the expiration of such
contract(s) is determined by the Committee to constitute a good-faith and
complete termination of the contractual relationship between the
Participant and such Employer.
|
|
(3)
|
For
a Participant who provides services to an Employer as both an employee and
an independent contractor
,
a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an employee and as an
independent contractor, as determined in accordance with the provisions
set forth in parts (1) and (2) above, respectively. Similarly,
if a Participant either (i) ceases providing services for an Employer as
an independent contractor and begins providing services for such Employer
as an employee, or (ii) ceases providing services for an Employer as an
employee and begins providing services for such Employer as an independent
contractor, the Participant will not be considered to have experienced a
Separation from Service until the Participant has ceased providing
services for such Employer in both capacities, as determined in accordance
with the applicable provisions set forth in parts (1) and (2) above.
|
|
Notwithstanding
the foregoing provisions in this part (3), if a Participant provides
services for an Employer as both an employee and as a member of the board
of directors (a “Director”), to the extent permitted by Treas. Reg.
§1.409A-1(h)(5) the services provided by such Participant as a Director
shall not be taken into account in determining whether the Participant has
experienced a Separation from Service as an employee, and the services
provided by such Participant as an employee shall not be taken into
account in determining whether the Participant has experienced a
Separation from Service as a Director
.
|
|
(y)
|
"
Subsidiary
"
shall mean any business organization in which
Trustmark National Bank,
Jackson, Mississippi
, directly or indirectly, owns an interest,
excluding ownership interests
Trustmark National Bank,
Jackson, Mississippi
may hold in their fiduciary capacities as
trustee or otherwise, and any other business organization that the Board
of Directors designates as a Subsidiary for purposes of this Plan,
provided in each such case the business organization would be aggregated
and treated as a single employer with
Trustmark National Bank,
Jackson, Mississippi
under Code Section 414(b) (controlled
group of corporations) and Code Section 414(c) (a group of trades or
businesses, whether or not incorporated, under common control), as
applicable. In order to identify the group of entities
described in the preceding sentence, the Committee shall use an ownership
threshold of at least eighty percent (80%) when applying, the applicable
provisions of (1) Code Section 1563 for determining a controlled
group of corporations under Code Section 414(b), and (2) Treas. Reg.
§1.414(c)-2 for determining the trades or businesses that are under common
control under Code
Section 414(c).
|
1.2
|
Construction
.
|
|
(a)
|
The
masculine gender when used herein shall be deemed to include the feminine
gender, and the singular may include the plural unless the context clearly
indicates to the contrary. The words "hereof", "herein,"
"hereunder", and other similar compounds of the word "here" shall mean and
refer to the entire Plan and not to any particular provision or
section. Whenever the words "Article" or "Section" are used in
this Plan, or a cross-reference to an "Article" or "Section" is made, the
Article or Section referred to shall be an Article or
Section of this Plan unless otherwise
specified.
|
|
(b)
|
The
Plan is intended to be a plan that is not qualified within the meaning of
Code Section 401(a) and that “is unfunded and is maintained by an
employer primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees within the
meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). Except with respect to Plan benefits not subject to
Code Section 409A, the Plan shall be administered and interpreted
(i) to the extent possible in a manner consistent with the intent
described in the preceding sentence, and (ii) in accordance with Code
Section 409A and related Treasury
guidance.
|
1.3
|
Applicability of Code
Section 409A
. It is intended that if no part of a
Participant’s Retirement Benefit is earned or becomes vested after
December 31, 2004 and there is no material modification with respect
to such benefit which would cause it to become subject to Code
Section 409A, then neither this Plan restatement nor Code
Section 409A shall apply to such Participant’s Plan benefits, and the
payment of such Participant’s Plan benefits shall be governed by the terms
of the Plan as in effect on December 31,
2004.
|
2.1
|
Eligibilityand
Participation
. Participation in the Plan shall be frozen
as of December 31, 2007, at which time it is anticipated that there
will be only one Participant in the Plan. An Employee shall, as
a condition precedent to participation herein, complete and return to the
Committee a duly executed Plan Agreement and Election to Participate
electing to participate herein and agreeing to the terms and conditions
thereof, and by the execution thereof such Participant shall have agreed
that all amounts deferred thereby shall be irrevocably deferred and that
in lieu thereof the Participant shall be entitled solely to the benefits
provided under this Plan. Any amendment thereto which affects
the amounts contributed by the Participant to the Plan shall be completed
and returned to the Committee at the time specified thereby, which must be
prior to December 31st of the calendar year preceding the calendar
year to which the amendment relates. Such Plan Agreement shall
contain such further conditions as may be established and are determined
in the sole discretion of the
Committee.
|
3.1
|
Amount and Payment of
Death Benefit
. If a Participant dies before Retirement
and before his or her Retirement Benefit commences to be paid pursuant to
Section 4.1(b) and the Plan is in effect at that time, the Bank will
pay or cause to be paid a Death Benefit to such Participant's
Beneficiary. The said Death Benefit shall be (i) one
hundred percent (100%) of the Participant's Covered Salary as set forth in
the Plan Agreement paid monthly for the next twelve (12) months after such
death and (ii) seventy five percent (75%) of said Participant's
Covered Salary paid monthly for the next one hundred and eight (108)
months or until the Participant would have been age sixty-five (65),
whichever is later. Such payments shall commence effective the
first day of the month following the date of
death.
|
|
Notwithstanding
the immediately preceding paragraph of this Section 3.1, the Bank
will pay or cause to be paid the Death Benefit specified therein only
if:
|
|
(a)
|
At
the time of the Participant's death prior to attaining his or her Normal
Retirement Date:
|
|
(i)
|
Such
Participant was an Employee and had not Retired, or was Disabled or on an
authorized leave of absence, his or her Retirement Benefit has not
commenced to be paid pursuant to Section 4.1(b) and all deferrals and
payments required to be made by such Participant under Sections 3.2
et
.
seq
. have been
made, or
|
|
(ii)
|
Such
required deferrals or payments were waived pursuant to Section 3.5
because of such Participant's
Disability;
|
|
(b)
|
The
Participant's Plan Agreement had been kept in force throughout the period
commencing on the date of such Plan Agreement and ending on the date of
his or her death;
|
|
(c)
|
The
Participant's death was due to causes other than suicide within two (2)
years of the date of his or her original Plan Agreement or within two (2)
years of the date of any amendment to his or her Plan Agreement or any
subsequent Plan Agreement resulting from additional benefits granted
because of an increase in the Participant's Covered Salary; but the
Participant's suicide shall relieve the Bank only of its obligation to pay
that portion of the Death Benefit that was granted within two (2) years
prior to the date of such suicide;
|
|
(d)
|
The
Participant's death is determined not to be from a bodily or mental cause
or causes, information about which was withheld, or knowingly concealed,
or falsely provided by the Participant when requested by the Bank to
furnish evidence of good health upon the Participant's enrolling in the
Plan or upon an application for an increase in benefits because of an
increase in Participant's Covered Salary;
and
|
|
(e)
|
Proof
of death in such form as determined acceptable by the Committee is
furnished.
|
3.2
|
Amount of Participant
Deferral and Payments
. In consideration for the Death
Benefit selected in Participant's Plan Agreement, each Participant shall
defer an amount of his or her compensation in such amounts and at such
times as shall be determined by the Committee and as specified in his or
her Election to Participate, and the Committee may change the amount of
such deferral prospectively on a calendar year by calendar year basis,
provided that any change is made prior to the beginning of the calendar
year for which it is effective. If a Participant is authorized
to take a leave of absence from his or her employment or, subject to the
provisions of Section 3.5, is Disabled, the Participant shall be required
to make payments to the Bank in accordance with Article III in order
to maintain his or her Plan Agreement in force. A Participant's
obligation to defer an amount of his or her compensation in accordance
with this Article III or to make the payments required by this
Article III shall be stated in his or her Plan Agreement and Election
to Participate and shall continue during the term of his or her Plan
Agreement or until the earlier of such Participant's death or attainment
of his or her Normal Retirement Date. A Participant shall have
the right, prospectively on a calendar year by calendar year basis, to
increase or decrease the amount of his or her deferral initially selected
by him by amending his or her Plan Agreement and Election to Participate
in accordance with the rules adopted by the Committee for this purpose,
provided that any change is agreed to prior to the beginning of the
calendar year for which it is
effective.
|
3.3
|
Time and Manner of
Deferring or Making Payments
. A Participant shall, in
his or her Plan Agreement and Election to Participate, authorize the
Employer to defer an amount of such Participant's compensation equal to
the amount specified pursuant to Section 3.2. A Participant who
is on authorized leave of absence or is Disabled and who is required to
make the payments required in this Article III shall make such
payments at such time and in such manner as the Committee shall provide;
provided, however, that the Participant shall not continue to make such
payments during any period in which a portion of his or her compensation
is being deferred or such payments have been waived pursuant to Section
3.5.
|
3.4
|
Participant Deferrals
and Payments - Use and Forfeitability
. The amount of
each Participant's compensation deferred pursuant to Sections 3.2 and 3.3
shall be and remain solely the property of the Bank and the amount
collected by the Bank pursuant to Sections 3.2 and 3.3 from each
Participant who is on an authorized leave of absence or disabled shall be
and become solely the property of the Bank, and a Participant shall have
no right thereto, nor shall the Bank be obligated to use such amounts in
any specific manner. Except as provided in Article IV, if a
Participant's death occurs under circumstances other than those specified
in Section 3.1, no benefit shall be payable hereunder or under his or her
Plan Agreement to his or her Beneficiary or any other person or entity on
his or her behalf, and any payments made by such Participant under
Sections 3.2 and 3.3 shall be
forfeited.
|
3.5
|
Waiver of Participant
Deferral or Payments
. If a Participant becomes Disabled
before attaining his or her Normal Retirement Date, if such Disability
continues for more than three (3) months, and if the Disability benefit
specified in Item 4 of the Participant's Plan Agreement is in effect,
such Participant shall not be required to defer a portion of his or her
compensation pursuant to Sections 3.2 and 3.3 or make the payments
provided for in Sections 3.2 and 3.3, commencing with the fourth (4th)
month following the date of such Disability and continuing thereafter for
as long as such Disability
continues.
|
3.6
|
Required Payments and
Leave of Absence
. If a Participant is authorized by the
Bank for any reason, including military, medical or other, to take a leave
of absence, such Participant shall be required to make payments in order
to maintain his or her Plan Agreement in force (first out of his or her
compensation during such leave of absence and, if his of her compensation
is insufficient, from his or her personal assets). Such
required payments shall be an amount equal to the amount of the
Participant's compensation that is to be deferred under the terms of his
or her Plan Agreement and Election to Participate. A
Participant required to make payments under this Section 3.6 shall
continue making such required payments until the earlier of (i) the
date he or she returns to his or her duties following the leave of
absence, (ii) the date such payments are waived pursuant to Section
3.5, or (iii) the effective date that he or she enters into a new
Plan Agreement and Election to Participate. If a Participant's
payments are waived pursuant to Section 3.5 and subsequently the
Participant returns to his or her duties, he or she shall be required to
resume deferring his or her compensation, in the amount specified
above.
|
3.7
|
Failure to Make
Required Payments
. Failure to make payments required by
Section 3.6 shall cause Participant's Plan Agreement to terminate
without the necessity of any notice from either party to the
other. From and after such termination, except as provided in
Section 4.6 hereof, neither party shall have any further obligation to the
other party under this Plan or such Plan
Agreement.
|
3.8
|
Disability
.
|
|
(a)
|
If
a Participant becomes Disabled before attaining his or her Normal
Retirement Date and subsequently dies before Retirement and before his or
her Retirement Benefit commences to be paid pursuant to
Section 4.1(b) and while the waiver described in Section 3.5 is in
effect, the Death Benefit provided in this Article III shall be
paid. If a Participant Retires while the waiver described in
Section 3.5 after becoming Disabled or attains his or her Normal
Retirement Date or commences to be paid pursuant to Section 4.1(b),
the Retirement Benefit provided in Article IV shall be
paid.
|
|
(b)
|
For
purposes hereof, either Disability and Disabled means unable to engage in
any substantial gainful activity (1) 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 not less
than twelve (12) months, or (2) 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 not less
than twelve (12) months, where the Participant is receiving income
replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Participant’s
Employer. For purposes of this Plan, a Participant shall be
deemed Disabled if determined to be totally disabled by the Social
Security Administration. A Participant shall also be deemed
Disabled if determined to be disabled in accordance with the applicable
disability insurance program of such Participant’s Employer, provided that
the definition of “disability” applied under such disability insurance
program complies with the requirements
hereof.
|
|
Notwithstanding
the foregoing, a Participant will not be considered Disabled
unless:
|
|
(1)
|
such
Disability was not either intentionally self-inflicted or caused by
illegal or criminal acts of the
Participant;
|
|
(2)
|
the
Participant was an Employee at the time he or she became Disabled (or was
then on an authorized Leave of Absence) and had made all payments required
hereunder; and
|
|
(3)
|
the
Participant's Plan Agreement has been kept in force until the time of such
Disability; and
|
|
(4)
|
the
Committee has approved the waiver of such fee and such waiver is so noted
in the Participant's Plan
Agreement.
|
|
The
determination of what constitutes a Disability or being Disabled and the
cessation of being Disabled for purposes of this Section 3.8 shall be
made by the Committee, in its sole and absolute discretion, and such
determination shall be conclusive.
|
4.1
|
Payment at Normal
Retirement Date
.
|
|
(a)
|
Subject
to Section 4.1(b) and Section 4.7, if a Participant has remained
an Employee until his or her Normal Retirement Date and shall then Retire,
and if the Plan and his or her Plan Agreement have been kept in force, the
Bank shall pay or cause to be paid to such Participant, as a Retirement
Benefit (herein so called), the amount per month specified in his or her
Plan Agreement as a Retirement Benefit. Payment of such monthly
amount shall commence on the Participant's Normal Retirement Date and
shall continue for the life of the Participant. If such
Participant shall die before receiving one hundred and twenty (120)
monthly payments, the Retirement Benefit will be continued to the
Participant's Beneficiary as set forth in the Beneficiary Designation
until an aggregate of one hundred and twenty (120) monthly payments has
been paid to the Participant and his or her
Beneficiary.
|
|
(b)
|
This
Section 4.1(b) shall apply, effective January 1, 2008,
notwithstanding any other provisions of the Plan other than
Section 4.7(b). In lieu of payment pursuant to the other
applicable provisions of this Article IV, if (1) any portion of
a Participant’s Retirement Benefit is earned or becomes vested after
December 31, 2004 and is thus subject to Code Section 409A,
(2) such a Participant has remained an Employee until his or her
Normal Retirement Date (or, if later, until December 31, 2007), and
(3) the Plan and such Participant’s Plan Agreement have been kept in
force until such time, the Retirement Benefit of such a Participant shall
commence to be paid on the Participant's Normal Retirement Date (or if
later, on January 1, 2008) and shall continue for the life of the
Participant. The amount of such monthly payment shall be the
amount per month specified in the Participant's Plan Agreement on the
Participant's Normal Retirement Date (increased where applicable for
interest at the rate of four percent (4%), or such other rate as the
Committee may determine from time to time, per annum, compounded annually,
to the Participant's Normal Retirement Date (or if later, to
January 1, 2008). If such Participant shall die before
receiving one hundred and twenty (120) monthly payments, the Retirement
Benefit will be continued to the Participant's Beneficiary as set forth in
the Beneficiary Designation until an aggregate of one hundred and twenty
(120) monthly payments has been paid to the Participant and his or her
Beneficiary. Notwithstanding any other provisions of the Plan,
in the event a Participant commences to receive his or her Retirement
Benefit pursuant to this Section 4.1(b), there shall be no further
accrual of, or any increase to, the Participant’s Retirement Benefit under
the Plan after the Participant’s Normal Retirement Date (or, if later,
December 31, 2007) unless the Committee provides for the same in a
Participant’s Plan Agreement (in which case any additional accrual for a
year shall commence to be paid on the next anniversary date of the
Participant’s Normal Retirement Date and shall be payable for the
Participant’s life, but there shall be no extension of the one hundred and
twenty (120) monthly payment period for Retirement
Benefits).
|
4.2
|
Early
Retirement
.
|
|
(a)
|
Subject
to Section 4.7, if a Participant has remained an Employee until his
or her Early Retirement Date and shall then Retire, and if the Plan and
his or her Plan Agreement have been kept in force, the Bank shall pay or
cause to be paid to such Participant an Early Retirement Benefit
commencing as of the Participant's Early Retirement Date. In
such event, the Participant's monthly Early Retirement Benefit shall be
the Retirement Benefit set forth in his or her Plan Agreement Actuarially
Reduced to the Participant's Early Retirement Date. The said
reduced monthly amount, payable for life shall be the only benefit to
which such Participant is entitled. If Participant shall die
before receiving one hundred and twenty (120) installments after
commencement of the Early Retirement Benefit, said amount will be
continued to Participant's Beneficiary as set forth in the Beneficiary
Designation until a total of one hundred and twenty (120) installments
have been paid to the Participant and his or her
Beneficiary.
|
|
(b)
|
A
Participant, in connection with his or her commencement of participation
in the Plan (or, if later, by December 31, 2008) and consistent with
the payment election rules of Code Section 409A (including that the
election does not cause amounts otherwise to be paid in the calendar year
of election to be deferred to a later calendar year and does not cause
amounts otherwise to be paid later than the calendar year of election to
be paid in the calendar year of election), may irrevocably elect in his or
her Plan Agreement (or in a supplement thereto) to decline to receive his
or her Retirement Benefit as an Early Retirement Benefit, in which event
his or her Retirement Benefit shall be paid at his or her Normal
Retirement Date pursuant to Section 4.1 (subject to acceleration in
the event of the Participant’s death after Retiring on Early Retirement)
and shall not commence to the Participant upon or in connection with his
or her Early Retirement.
|
|
If
such a Participant dies before attainment of his or her Normal Retirement
Date, the monthly amount will be paid to Participant's Beneficiary as set
forth in Participant's Beneficiary Designation for one hundred and twenty
(120) months. Such payments shall commence effective the first
day of the month following the date of death, provided that the
commencement may be delayed until the date on which the Committee is
provided with proof that is satisfactory to the Committee of the
Participant’s death.
|
4.3
|
Post Retirement Death
Benefit
. If a Participant dies after Retirement or
commencement of his or her Retirement Benefit pursuant to
Section 4.1(b), but before the applicable Retirement Benefit is paid
in full, the unpaid Retirement Benefit payments to which such Participant
is entitled shall continue and be paid to that Participant's
Beneficiary. Such payments shall be made in accordance with the
payment schedule to that Participant pursuant to Section 4.1 or 4.2 of the
Plan.
|
4.4
|
Exclusivity of Post
Retirement Death Benefit
. No Death Benefit as defined in
Article III shall be paid to the Beneficiary of a Participant who
dies after Retirement or commencement of his or her Retirement Benefit
pursuant to Section 4.1(b).
|
4.5
|
Accrual of Retirement
Benefit
. A Participant who ceases to be an Employee
before completion of one (1) full year of participation in the Plan,
except as a result of death, Retirement, or Disability, or as a result of
Just Cause at any time shall not be entitled to any benefits hereunder and
the Bank shall have no obligation hereunder to such
Participant.
|
4.6
|
Deferred Termination
Benefit
. A Participant who ceases to be an Employee
after the completion of one (1) full year of participation in the Plan and
for reasons other than Retirement or Just Cause shall receive a portion of
his or her monthly Retirement Benefit upon the earlier of (i) the
Participant's death or (ii) attainment of his or her Normal Retirement
Date. Said portion shall be the monthly amount of the
Retirement Benefit set forth in the Participant's Plan Agreement
multiplied by a fraction, not to exceed one (1), the numerator of which is
the number of whole years said Employee was a Participant in the Plan and
the denominator of which is fifteen (15). The resulting reduced
monthly amount shall be the only benefit to which such Participant is
entitled. Subject to Section 4.7, the reduced monthly
amount will be payable for life, if Participant so survives, commencing at
the Participant's Normal Retirement Date. If such Participant
shall die before receiving one hundred and twenty (120) monthly payments,
the reduced amount will be continued to the Participant's Beneficiary as
set forth in the Beneficiary Designation until an aggregate of one hundred
and twenty (120) monthly payments has been paid to the Participant and his
or her Beneficiary.
|
|
If
such a Participant dies before attainment of his or her Normal Retirement
Date, the reduced monthly amount will be paid to Participant's Beneficiary
as set forth in Participant's Beneficiary Designation for one hundred and
twenty (120) months. Such payments shall commence effective the
first day of the month following the date of death, provided that the
commencement may be delayed until the date on which the Committee is
provided with proof that is satisfactory to the Committee of the
Participant’s death. No Death Benefit as defined in
Article III shall be paid to the Beneficiary of such a Participant
who dies before attainment of his or her Normal Retirement
Date.
|
4.7
|
Deferral of Payment
Commencement to Comply with Code Section 409A or to Avoid
Non-Deductibility under Code Section
162(m)
.
|
|
(a)
|
Notwithstanding
any other provisions of the Plan, if a Participant becomes entitled to be
paid his or her Retirement Benefit which is considered to be nonqualified
deferred compensation for purposes of, and which is subject to, Code
Section 409A (taking into account all applicable exclusions and
exemptions thereunder) by reason of his or her Retirement or other
Separation from Service (which term does not include separation by reason
of death or Disability), the following shall
apply: (1) such Participant shall not commence to be paid
his or her Retirement Benefit until he or she is considered to have a
Separation from Service; and (2) where payment commences on account
of the Participant’s Separation from Service, commencement of payment of
his or her Retirement Benefit shall be delayed until six (6) months after
such Separation from Service or, if earlier, the Participant’s death (the
“409A Deferral Period”). In the event payments are delayed by
clause (2) of the preceding sentence, the payments otherwise due to be
made in installments or periodically during the 409A Deferral Period shall
be accumulated and paid in a lump sum as soon as the 409A Deferral Period
ends (together with interest thereon based on the interest rate used to
determine an Actuarially Reduced payment as of the date of his or her
Separation from Service), and the balance of the payments shall thereafter
be made as otherwise scheduled.
|
|
(b)
|
If
the Bank’s deduction with respect to any distribution from this Plan to a
Participant would be limited or eliminated by application of Code Section
162(m), then to the extent permitted by Treas. Reg. §1.409A-2(b)(7)(i),
payment shall be delayed as deemed necessary to ensure that the entire
amount of any distribution from this Plan to the Participant is
deductible. Any amounts for which distribution is delayed
pursuant to this provision shall continue to be credited with interest
thereon based on the interest rate used to determine an Actuarially
Reduced payment. The delayed amounts (and any interest credited
thereon) shall be distributed to the Participant (or his or her
Beneficiary in the event of the Participant’s death) at the earliest date
the Bank reasonably anticipates that the deduction of the payment of the
amount will not be limited or eliminated by application of Code Section
162(m). In the event that such date is determined to be after a
Participant’s Separation from Service, then the payment to the Participant
will be considered made on account of a Separation from Service and must
comply with the six (6) month delay in payment required by Section 4.7(a)
following such Participant’s Separation from
Service.
|
6.1
|
Benefits Payable from
General Assets
. Amounts payable hereunder shall be paid
exclusively from the general assets of the Bank, and no person entitled to
payment hereunder shall have any claim, right, security interest, or other
interest in any fund, trust, account, or other asset of the Bank that may
be looked to for such payment. The Bank's liability for the
payment of benefits hereunder shall be evidenced only by this Plan and
each Plan Agreement entered into between the Bank and a
Participant.
|
6.2
|
Investments to
Facilitate Payment of Benefits
. Although the Bank is not
obligated to invest in any specific asset or fund in order to provide the
means for the payment of any liabilities under this Plan, the Bank may
elect to do so and, in such event, no Participant shall have any interest
whatever in such asset or fund. As a condition precedent to the
Bank's obligation to provide any benefits, including incremental increases
in benefits, under this Plan, the Participant shall, if so requested by
the Bank, provide evidence of insurability at standard and other rates, in
such amounts, and with such insurance carrier or carriers as the Bank may
require, including the results and reports of previous Bank and other
insurance carrier physical examinations, taking such additional physical
examinations as the Bank may request, and taking any other action that the
Bank may request, and shall consent to the Bank’s acquisition of insurance
on his or her life. If a Participant is requested to and does
not or cannot provide evidence of insurability as specified in the
immediately preceding sentence, then the Bank shall have no further
obligation to such Participant under this Plan, and such Participant's
Plan Agreement shall terminate, except as to benefits previously
granted. Notwithstanding the foregoing, if a Participant cannot
provide evidence of insurability at standard rates or for the amounts
initially contemplated in connection with his or her participation in the
Plan, the Bank may, at its discretion, permit the Participant to
participate herein for such benefits and upon such deferral of his or her
compensation as the Bank may, in its sole discretion, deem appropriate in
a manner which is not violative of Code Section 409A and is set out
in his or her Plan Agreement.
|
|
The
Participant also understands and agrees that his or her participation, in
any way, in the acquisition of any such insurance policy or any other
general asset by the Bank shall not constitute a representation to the
Participant, his or her Beneficiary, or any person claiming through the
Participant that any of them has a special or beneficial interest in such
general asset.
|
6.3
|
Bank
Obligation
. The Bank shall have no obligation of any
nature whatsoever to a Participant under this Plan or a Participant's Plan
Agreement, except otherwise expressly provided herein and in such Plan
Agreement.
|
6.4
|
Withholding of
Information, Etc
. If, in connection with a Participant's
enrolling in or applying for incremental benefit increases under the Plan,
the Bank requests the Participant to furnish evidence of insurability, the
Participant dies, and it is determined that the Participant withheld,
knowingly concealed, or knowingly provided false information about the
bodily or mental condition or conditions that caused the Participant's
death, the Bank shall have no obligation to provide the benefits
contracted for on the basis of such withholding, concealment, or false
information.
|
8.1
|
Termination of
Participation - General
. A Participant reserves the
right to terminate his or her participation in this Plan and his or her
Plan Agreement at his or her election at any time by giving the Committee
written notice of such termination not less than thirty (30) days prior to
an anniversary date of the date of execution of his or her Plan
Agreement. A Participant's termination shall be effective as
soon as administratively convenient after such anniversary
date. If a Participant terminates his or her participation in
the Plan, such participation termination must not be violative of Code
Section 409A and, in the case of a Participant who has agreed to a
deferral of compensation pursuant to the Plan, must be effected as of the
beginning of a calendar year, or as of a specified date is a calendar
year, following the calendar year in which the Participant delivers
written notice of his or her participation termination to the
Committee.
|
8.2
|
Rights After
Termination of Participation
. Participants who elect to
terminate participation in the Plan after one (1) full year of
participation but before eligibility for Retirement will be entitled to
the same benefits as a Participant who ceases to be an Employee as
described in Section 4.6. Such Participants will not be
entitled to a Death Benefit under
Article III.
|
9.1
|
Termination Amendment,
Etc
. The Bank reserves the right to terminate, amend,
modify or supplement this Plan, wholly or partially, and from time to
time, at any time. The Bank likewise reserves the right to
terminate, amend, modify, or supplement any Plan Agreement, wholly or
partially, from time to time. Such right to terminate, amend,
modify, or supplement this Plan or any Plan Agreement shall be exercised
for the Bank by the Committee; provided, however,
that:
|
|
(a)
|
Except
as deemed appropriate to comply with Code Section 409A, no action to
terminate this Plan or a Plan Agreement shall be taken except upon written
notice to each Participant to be affected thereby, which notice shall be
given not less than thirty (30) days prior to such action;
and
|
|
(b)
|
The
Committee shall take no action to terminate this Plan or a Plan Agreement
with respect to a Participant or his or her Beneficiary after the payment
of any benefit has commenced in accordance with Article III or
Article IV but has not been
completed.
|
Notwithstanding
the foregoing, the Bank may not provide for acceleration in payment of any
Plan benefit subject to Code Section 409A upon termination of the
Plan, or for termination of any compensation deferral by a Participant
pursuant to the Plan in connection with the termination of the Plan,
unless it does so subject to and in accordance with any rules established
by it deemed necessary to comply with the applicable requirements and
limitations of Code Section 409A and Treas. Reg.
§1.409A-3(j)(4)(ix).
|
9.2
|
Rights and Obligations
Upon Termination
. Upon the termination of this Plan or
any Plan Agreements, by either the Committee or a Participant in
accordance with the provisions for such termination, neither this Plan nor
the Plan Agreement shall be of any further force and effect, and no party
shall have any further obligation under either this Plan or any Plan
Agreement so terminated except as may be provided for in Section 4.6,
Section 9.3, or the provisions of this
Article IX.
|
9.3
|
Revocation
. In
the event Participant is discharged for Just Cause at any time, his or her
Plan Agreement shall be terminated and considered null and void with
neither the Participant nor Participant's Beneficiary having any claim or
right against Bank under this Plan or the Participant’s Plan Agreement
thereafter.
|
12.1
|
Appointment of
Committee
. The general administration of this Plan, and
any Plan Agreements executed hereunder, as well as construction and
interpretation thereof, shall be vested in the Committee, the number and
members of which shall be designated and appointed from time to time by,
and shall serve at the pleasure of, the Board of Directors. Any
such member of the Committee may resign by notice in writing filed with
the secretary of the Committee. Vacancies shall be filled
promptly by the Board of Directors but any vacancies remaining unfilled
for ninety days may be filled by a majority vote of the remaining members
of the Committee. Each person appointed a member of the
Committee shall signify his or her acceptance by filing a written
acceptance with the secretary of the
Committee.
|
12.2
|
Committee
Officials
. The Board of Directors shall designate one of
the members of the Committee as chairman and shall appoint a secretary who
need not be a member of the Committee. The secretary shall keep
minutes of the Committee's proceedings and all data, records and documents
relating to the Committee's administration of this Plan and any Plan
Agreements executed hereunder. The Committee may appoint from
its number such subcommittees with such powers as the Committee shall
determine and may authorize one or more of its members or any agent to
execute or deliver any instrument or make any payment on behalf of the
Committee.
|
12.3
|
Committee
Action
. All resolutions or other actions taken by the
Committee shall be by the vote of a majority of those members present at a
meeting at which a majority of the members are present, or in writing by
all the members at the time in office if they act without a
meeting.
|
12.4
|
Committee Rules and
Powers - General
. Subject to the provisions of this
Plan, the Committee shall from time to time establish rules, forms, and
procedures for the administration of this Plan, including Plan
Agreements. The Committee shall have the exclusive right to
determine, among other matters, (i) Disability with respect to a
Participant and (ii) the degree thereof, either or both determinations to
be made on the basis of such medical and/or other evidence that the
Committee, in its sole and absolute discretion, may
require. Such decisions, actions, and records of the Committee
shall be conclusive and binding upon the Bank and all persons having or
claiming to have any right or interest in or under this
Plan.
|
12.5
|
Reliance on
Certificate, Etc
. The members of the Committee and the
officers and directors of the Bank shall be entitled to rely on all
certificates and reports made by any duly appointed accountants, and on
all opinions given by any duly appointed legal counsel. Such
legal counsel may be counsel for the
Bank.
|
12.6
|
Liability of
Committee
. No member of the Committee shall be liable
for any act or omission of any other member of the Committee, or for any
act or omission on his or her own part, excepting only his or her own
willful misconduct. The Bank shall indemnify and save harmless
each member of the Committee against any and all expenses and liabilities
arising out of his or her membership on the Committee, excepting only
expenses and liabilities arising out of his or her own willful
misconduct. Expenses against which a member of the Committee
shall be indemnified hereunder shall include, without limitation, the
amount of any settlement or judgment, costs, counsel fees, and related
charges reasonably incurred in connection with a claim asserted, or a
proceeding brought, or settlement thereof. The foregoing right
of indemnification shall be in addition to any other rights to which any
such member may be entitled as a matter of
law.
|
12.7
|
Determination of
Benefits
. In addition to the powers hereinabove
specified, the Committee shall have the power to compute and certify,
under this Plan and any Plan Agreement, the amount and kind of benefits
from time to time payable to Participants and their Beneficiaries, and to
authorize all disbursements for such
purposes.
|
12.8
|
Information to
Committee
. To enable the Committee to perform its
functions, the Bank shall supply full and timely information to the
Committee on all matters relating to the compensation of all Participants,
their retirement, death or other cause for termination of employment, and
such other pertinent facts as the Committee may
require.
|
12.9
|
Manner and time of
Payment of Benefits
. The Committee shall have the power,
in its sole and absolute discretion, to change the manner and time of
payment of benefits to be made to a Participant or his or her Beneficiary
from that set forth in the Participant's Plan Agreement if requested to do
so by such Participant or
Beneficiary.
|
13.1
|
Named
Fiduciary
. The Named Fiduciary of the Plan for purposes
of the claims procedure under this Plan is the Chief Financial Officer;
provided, however, that if the claim relates to a Plan benefit of the
Chief Financial Officer, the Named Fiduciary shall be the person or
committee designated by the Bank.
|
13.2
|
Right to Change Named
Fiduciary
. The Bank shall have the right to change the
Named Fiduciary created under this Plan. The Bank shall also
have the right to change the address and telephone number of the Named
Fiduciary. The Bank shall give the Participant written notice
of any change of the Named Fiduciary, or any change in the address and
telephone number of the Named
Fiduciary.
|
13.3
|
Procedure for
Claims
. Benefits shall be paid in accordance with the
provisions of this Plan. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being referred to
below as a “Claimant”) may deliver to the Named Fiduciary a written claim
for a determination with respect to the amounts distributable to such
Claimant from the Plan. The written claim shall be mailed or
delivered to the Named Fiduciary. If such a claim relates to
the contents of a notice received by the Claimant, the claim must be made
within sixty (60) days after such notice was received by the
Claimant. All other claims must be made within one hundred and
eighty (180) days of the date on which the event that caused the claim to
arise occurred. The claim must state with particularity the
determination desired by the
Claimant.
|
13.4
|
Notification of Denial
of Claim
. The Named Fiduciary shall consider a
Claimant's claim within a reasonable time, but no later than ninety (90)
days after receiving the claim. If the Named Fiduciary
determines that special circumstances require an extension of time for
processing the claim, written notice of the extension shall be furnished
to the Claimant prior to the termination of the initial ninety (90) day
period. In no event shall such extension exceed a period of
ninety (90) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Named Fiduciary expects to
render the benefit determination. The Named Fiduciary shall
notify the Claimant in writing:
|
|
(a)
|
that
the Claimant's requested determination has been made, and that the claim
has been allowed in full; or
|
|
(b)
|
that
the Named Fiduciary has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must set
forth in a manner calculated to be understood by the
Claimant:
|
|
(1)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
|
(2)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
|
(3)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;
|
|
(4)
|
an
explanation of the claim review procedure set forth in Section 13.5
below; and
|
|
(5)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
|
13.5
|
Review of a Denied
Claim
. On or before sixty (60) days after receiving a
notice from the Named Fiduciary that a claim has been denied, in whole or
in part, a Claimant (or the Claimant's duly authorized representative) may
file with the Named Fiduciary a written request for a review of the denial
of the claim. The Claimant (or the Claimant's duly authorized
representative):
|
|
(a)
|
may,
upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claim for
benefits;
|
|
(b)
|
may
submit written comments or other documents;
and/or
|
|
(c)
|
may
request a hearing, which the Named Fiduciary, in its sole discretion, may
grant.
|
13.6
|
Decision on
Review
. The Named Fiduciary shall render its decision on
review promptly, and no later than sixty (60) days after the Named
Fiduciary receives the Claimant’s written request for a review of the
denial of the claim. If the Named Fiduciary determines that
special circumstances require an extension of time for processing the
claim, written notice of the extension shall be furnished to the Claimant
prior to the termination of the initial sixty (60) day
period. In no event shall such extension exceed a period of
sixty (60) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Named Fiduciary expects to
render the benefit determination. In rendering its decision,
the Named Fiduciary shall take into account all comments, documents,
records and other information submitted by the Claimant relating to the
claim, without regard to whether such information was submitted or
considered in the initial benefit determination. The decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
|
|
(a)
|
specific
reasons for the decision;
|
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;
|
|
(c)
|
a
statement that the Claimant is entitled to receive, upon request and free
of charge, reasonable access to and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to
the Claimant’s claim for benefits;
and
|
|
(d)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a).
|
13.7
|
Legal
Action
. A Claimant's compliance with the foregoing
provisions of this Article XIII is a mandatory prerequisite to a
Claimant's right to commence any legal action with respect to any claim
for benefits under this Plan.
|
15.1
|
Execution of Receipts
and Releases
. Any payment to any Participant, a
Participant's legal representative, or Beneficiary in accordance with the
provisions of this Plan or Plan Agreement executed hereunder shall, to the
extent thereof, be in full satisfaction of all claims hereunder against
the Bank. The Bank may require such Participant, legal
representative, or Beneficiary, as a condition precedent to such payment,
to execute a receipt and release therefore in such form as it may
determine.
|
15.2
|
No Guarantee of
Interests
. Neither the Committee nor any of its members
guarantees the payment of any amounts which may be or become due to any
person or entity under this Plan or any Plan Agreement executed
hereunder. The liability of the Bank to make any payment under
this Plan or any Plan Agreement executed hereunder is limited to the then
available assets of the Bank.
|
15.3
|
Bank
Records
. Records of the Bank as to a Participant's
employment, termination of employment and the reason therefor authorized
leaves of absence, and compensation shall be conclusive on all persons and
entities, unless determined to be
incorrect.
|
15.4
|
Evidence
. Evidence
required of anyone under this Plan and any Plan Agreement executed
hereunder may be by certificate, affidavit, document, or other information
which the person or entity acting on it considers pertinent and reliable,
and signed, made, or presented by the proper party or
parties.
|
15.5
|
Notice
. Any
notice which shall be or may be given under this Plan or a Plan Agreement
executed hereunder shall be in writing and shall be mailed by United
States mail, postage prepaid. If notice is to be given to the
Bank, such notice shall be addressed to the Bank
at:
|
|
marked
to the attention of the Secretary, Administrative Committee, Executive
Deferral Plan; or, if notice to a Participant, addressed to the address
shown on such Participant's Plan
Agreement.
|
15.6
|
Change of
Address
. Any party may, from time to time, change the
address to which notices shall be mailed by giving written notice of such
new address.
|
15.7
|
Effect of
Provisions
. The provisions of this Plan and of any Plan
Agreement executed hereunder shall be binding upon the Bank and its
successors and assigns, and upon a Participant, his or her Beneficiary,
assigns, heirs, executors, and
administrators.
|
15.8
|
Headings
. The
titles and headings of Articles and Sections are included for convenience
of reference only and are not to be considered in the construction of the
provisions hereof or any Plan Agreement executed
hereunder.
|
15.9
|
Governing
Law
. All questions arising with respect to this Plan and
any Plan Agreement executed hereunder shall be determined by reference to
the laws of the State of Mississippi, as in effect at the time of their
adoption and execution,
respectively.
|
|
____ |
To
participate in the Plan, in which case I acknowledge and agree that my
last Election to Participate remains in
effect.
|
|
____ |
Not
to participate in the Plan.
|
1.
|
Participant's Covered
Salary:
$
per month.
|
|
This
represents
% of the
Covered Salary made available for computation of Retirement and Death
Benefits.
|
2.
|
Death Benefit (Article III
of Plan):
|
3.
|
Retirement Benefit
(Article IV of Plan):
|
|
(a)
|
Retirement
at Normal Retirement Date: $
per month for life. If Participant shall die prior to receiving
one hundred and twenty (120) monthly payments, said amount
shall be continued to Participant's Beneficiary in accordance with
Beneficiary Designation until the balance of the one hundred and twenty
(120) monthly payments has been
paid.
|
|
(b)
|
Retirement
before Normal Retirement Date: Amounts to be determined and
paid as specified by Section 4.2(a) of the Plan
unless
an
election is made below to be paid at Participant’s Normal Retirement
Date:
|
|
____ |
I
elect that, if I retire on Early Retirement under the Plan, my Retirement
Benefit will commence at my Normal Retirement Date (rather than 6 months
after my Early Retirement Date as provided in Section 4.2(a) of the
Plan) or, if earlier, after my death as provided in Section 4.2(b) of
the Plan.
|
|
(c)
|
Termination
Benefit: Amounts to be determined and paid as specified by
Section 4.6 of the Plan.
|
4.
|
Disability Waiver
(Article III of Plan):
In the event of Disability
(as defined in Section 1.1 of the Plan), Participant’s deferral shall
be waived pursuant to Section 3.5 of the
Plan.
|
5.
|
Participant Contributions
(Article III of Plan):
The Participant’s deferral
from compensation with respect to the Death Benefit under Article III
of the Plan is
|
|
The
Participant hereby authorizes the Employer to reduce his or her
compensation by the amount specified in the immediately preceding sentence
(which he or she previously agreed to) and which he or she acknowledges
and agrees shall remain in effect as of January 1, 2008 and shall
continue thereafter until no longer required to do so pursuant to the
applicable provisions of the Plan.
|
|
The
Participant hereby agrees, in the event that the Participant is on an
authorized leave of absence or Disabled (as defined in Section 1.1 of
the Plan), to make payment to the Bank of said amounts as provided in the
Plan.
|
|
I
understand and further acknowledge that if I terminate the relationship
with the above-named Bank or terminate participation in the Plan by
terminating this Plan Agreement prior to my Retirement (as defined in
Section 1.1 of the Plan) or commencement of my Retirement Benefit
payment pursuant to Section 4.1(b) of the Plan, except as provided in
Section 4.6 of the Plan, I will forfeit my right to receive any
benefits under the Plan and that all payments that I have made under the
Plan (in accordance with Article III thereof and Item 5 above)
will be forfeited.
|
|
I
further acknowledge that any rights I or any Beneficiary have shall be
solely those of an unsecured-creditor of the Bank. If the Bank
shall purchase an insurance policy or any other asset in connection with
the liabilities assumed by it hereunder, then, except as otherwise
expressly provided, such policy or other assets shall not be deemed to be
held under any trust for my benefit or the benefit of my Beneficiary or to
be collateral security for the performance of the obligations of the Bank,
but shall be, and remain, a general, unpledged, unrestricted asset of the
Bank.
|
|
I
further acknowledge that neither the Bank nor any of its subsidiaries,
affiliated companies, officers, employees or agents has any responsibility
whatsoever for any changes which I may make in other personal plans or
programs as a result of my decision regarding the Plan and they are fully
released to such extent, and I understand that the Plan and this Plan
Agreement may be terminated at any time, in the sole discretion of the
Bank, without any obligation of any nature whatsoever to the Bank, except
a Participant shall have those rights provided for in Articles III, IV,
VIII and IX of said Plan, to the extent such may be applicable to him or
her at the time of such
termination.
|
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
|
||
By
|
||
Title
|
||
PARTICIPANT
|
||
(Signature)
|
||
(Type
or print name)
|
||
(Address
of Participant)
|
|
|||
1.
|
Participant:
|
|
. |
2.
|
Scope:
This
Beneficiary Designation applies to all benefits of the Plan to which the
above-named Participant has the right to name the
Beneficiary.
|
3.
|
COUNSEL:
THE
DESIGNATION OF A BENEFICIARY OR BENEFICIARIES IN ITEMS 4, 5, AND 6 BELOW
MAY HAVE SIGNIFICANT ESTATE AND GIFT TAX CONSEQUENCES TO THE
PARTICIPANT. ACCORDINGLY, THE PARTICIPANT SHOULD SEEK THE
ADVICE OF PROFESSIONAL COUNSEL WHO IS FAMILIAR WITH THE ESTATE AND GIFT
TAX ASPECTS OF NONQUALIFIED RETIREMENT AND SALARY CONTINUATION PLANS
BEFORE COMPLETING THIS FORM.
|
4.
|
Identification
of Beneficiaries:
|
A.
|
Primary
Beneficiary:
|
|
|
||
B.
|
Secondary
Beneficiary:
|
|
|
||
5. | Methods of Payment (Check One): | ||
|
|||
____ |
Alternative
1
. Beneficiary shall mean the Primary Beneficiary if
such Primary Beneficiary survives Participant, and shall mean the Primary
Beneficiary's estate if such Primary Beneficiary survives Participant but
thereafter dies. The term Beneficiary shall mean the Secondary
Beneficiary if the Primary Beneficiary fails to survive Participant, and
shall mean the Secondary Beneficiary's estate when the Secondary
Beneficiary thereafter dies. If both the Primary and Secondary
Beneficiaries fail to survive Participant, the term Beneficiary shall mean
the Participant's estate.
|
||
____ |
Alternative
2
. Beneficiary shall mean the Primary Beneficiary if
such Primary Beneficiary survives Participant, and shall mean the
Secondary Beneficiary if either the Primary Beneficiary fails to survive
Participant or the Primary Beneficiary survives Participant but thereafter
dies. If both the Primary and Secondary Beneficiaries fail to
survive Participant, the term Beneficiary shall mean the Participant's
estate.
|
||
_____ | Alternative 3 . | ||
6.
|
Survivorship
(Check One):
|
____ |
Alternative
1
. For purposes of this Beneficiary Designation, no
person shall be deemed to have survived the Participant if that person
dies within thirty (30) days of the Participant's
death.
|
____ |
Alternative
2
. If the Participant and the Participant's spouse die
under circumstances such that there is insufficient evidence to determine
the order of their deaths or if the Participant's spouse outlives the
Participant for any time whatsoever, the Participant's spouse shall be
deemed to have survived the Participant. For all other purposes
of this Beneficiary Designation, no person shall be deemed to have
survived the Participant if that person dies within thirty (30) days of
the Participant's death.
|
7.
|
Duration:
This
Beneficiary Designation is effective until the Participant files another
such Designation with the Bank. Any previous Beneficiary
Designations are hereby revoked.
|
8.
|
Execution:
|
Date:
|
Participant:
|
Witness:
|
9.
|
Approval:
This
Beneficiary Designation is acknowledged and approved this
day of
_______________, 20
and
shall be effective as of the date executed by the Participant
above.
|
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
|
||
By
|
||
Title
|
1.1
|
Definitions
. For
purposes of this Plan, the following phrases or terms shall have the
indicated meanings unless otherwise clearly apparent from the
context:
|
|
(e)
|
"
Bank
" shall
mean
Trustmark National
Bank, Jackson, Mississippi
and any Subsidiary that duly adopts the
Plan as provided in Article XIV hereof. Where the context
dictates, the term "Bank" as used herein refers to the particular Bank
that has entered into a Plan Agreement with a particular
Participant.
|
|
(b)
|
"
Beneficiary
"
shall mean the person, persons or estate of a Participant, entitled to
receive any benefits subsequent to the death of a Participant under a Plan
Agreement entered into in accordance with the terms of this
Plan.
|
|
(c)
|
"
Beneficiary
Designation
" shall mean the form of written agreement, attached
hereto as Annex II, by which the Participant names the Beneficiary(ies) of
the Plan.
|
|
(d)
|
"
Benefit Level
"
shall mean that level of Benefits (Death and Retirement) which is made
available by the Bank to the Participant for computation of Retirement and
Death Benefits pursuant to the terms and conditions of the
Plan.
|
|
(e)
|
"
Board of
Directors
" shall mean the Board of Directors of
Trustmark National Bank,
Jackson, Mississippi
unless otherwise indicated or the context
otherwise requires.
|
|
(f)
|
"
Buyout
" shall
mean a transaction or series of related transactions by which the Bank or
Holding Company is sold, either through the sale of a Controlling Interest
in the Bank's or Holding Company’s voting stock or through the sale of
substantially all of the Bank's or Holding Company’s assets, to a party
not having a Controlling Interest in the Bank's or Holding Company’s
voting stock.
|
|
(g)
|
"
Change in
Control
" shall mean a Buyout, Merger, or Substantial Change in
Ownership.
|
|
(h)
|
"
Code
" shall
mean the Internal Revenue Code of 1986, as the same may be amended from
time to time, or the corresponding Section of any subsequent Internal
Revenue Code, and, to the extent not inconsistent therewith, regulations
issued thereunder.
|
|
(i)
|
"
Committee
"
shall mean the Human Resources Committee of the Board of Directors of the
Holding Company (or any successor committee thereto) or any other
committee appointed by the Board of Directors of the Bank in lieu thereof
to manage and administer the Plan and individual Plan Agreements in
accordance with the provisions of Article XII
hereof.
|
|
(k)
|
"
Controlling
Interest
" shall mean ownership, either directly or indirectly, of
more than twenty percent (20%) of the Bank's or Holding Company’s voting
stock.
|
|
(l)
|
"
Death Benefit
"
shall mean the benefit provided under Article III of the
Plan.
|
|
(l)
|
"
Director
" shall
mean any person who is associated as a Director or Advisory Director with
the Bank or one of its
Subsidiaries.
|
|
(m)
|
"
Disability" or
"Disabled
" shall mean that a Participant is disabled as provided in
Section 3.8.
|
|
(n)
|
"
Election to
Participate
" shall mean the form of written agreement that will be
executed and entered into between a Participant and the Bank specifying
the amount of annual compensation to be deferred immediately following the
date of execution of said "Election to Participate" and continuing
thereafter under the terms of the
Plan.
|
|
(o)
|
“
Employer(s)
”
shall mean the Bank and/or any Subsidiary (now in existence or hereafter
formed or acquired) that duly adopts the Plan as provided in
Article XIV hereof.
|
|
(p)
|
“
ERISA
” shall
mean the Employee Retirement Income Security Act of 1974, as it may be
amended from time to time, and, to the extent not inconsistent therewith,
regulations issued thereunder.
|
|
(q)
|
"
Holding
Company
" shall mean Trustmark
Corporation.
|
|
(r)
|
"
Merger
" shall
mean a transaction or series of transactions wherein the Bank or Holding
Company is combined with another business entity, and after which the
persons or entities who had owned, either directly or indirectly, a
Controlling Interest in the Bank's or Holding Company’s voting stock own
less than a Controlling Interest in the voting stock of the combined
entity.
|
|
(s)
|
"
Normal Retirement
Date
" shall be March 1 following Participant’s sixty-fifth
(65th) birthday.
|
|
(t)
|
"
Participant
"
shall mean a Director who is selected and elects to participate in the
Plan through the execution of a Plan Agreement in accordance with the
provisions of Article II.
|
|
(u)
|
"
Participant's Benefit
Level
" shall mean that portion of the Benefit Level which the
Participant chooses as a basis for computation of Death and Retirement
Benefits pursuant to the terms and conditions of the
Plan.
|
|
(v)
|
"
Plan
" shall
mean the Directors' Deferred Fee Plan of
Trustmark National Bank,
Jackson, Mississippi
as amended from time to
time.
|
|
(w)
|
"
Plan Agreement
"
shall mean the form of written agreement, attached hereto as Annex I,
which is entered into from time to time by and between the Bank and a
Director selected to become a Participant as a condition to participation
in the Plan. Each Plan Agreement executed by a Participant
shall provide for the entire benefit to which such Participant is entitled
under the Plan, and the Plan Agreement bearing the latest date shall
govern such entitlement.
|
|
(x)
|
"
Retirement
" and
"
Retire
"
shall mean severance of relationship with the Bank at or after the
attainment of his or her Normal Retirement
Date.
|
|
(y)
|
"
Retirement
Benefit
" shall mean the benefit provided under Article IV of
the Plan.
|
|
(aa)
|
"
Subsidiary
"
shall mean any business organization in which
Trustmark National Bank,
Jackson, Mississippi
, directly or indirectly, owns an interest,
excluding ownership interests
Trustmark National Bank,
Jackson, Mississippi
may hold in their fiduciary capacities as
trustee or otherwise, and any other business organization that the Board
of Directors designates as a Subsidiary for purposes of this Plan,
provided in each such case the business organization would be aggregated
and treated as a single employer with
Trustmark National Bank,
Jackson, Mississippi
under Code Section 414(b) (controlled
group of corporations) and Code Section 414(c) (a group of trades or
businesses, whether or not incorporated, under common control), as
applicable. In order to identify the group of entities
described in the preceding sentence, the Committee shall use an ownership
threshold of at least eighty percent (80%) when applying, the applicable
provisions of (1) Code Section 1563 for determining a controlled
group of corporations under Code Section 414(b), and (2) Treas. Reg.
Sec.1.414(c)-2 for determining the trades or businesses that are under
common control under Code
Section 414(c).
|
|
(bb)
|
"
Substantial Change in
Ownership
" shall mean a transaction or series of transactions in
which a Controlling Interest in the Bank or Holding Company is acquired by
or for a person or business entity, either of which did not own, either
directly or indirectly, a Controlling Interest in the Bank or Holding
Company. The above shall not apply to stock purchased by any
tax-qualified employee stock ownership plan or other such type of benefit
plan sponsored by the Bank or any company affiliated with the Bank or the
Holding Company.
|
1.2
|
Construction
.
|
|
(a)
|
The
masculine gender when used herein shall be deemed to include the feminine
gender, and the singular may include the plural unless the context clearly
indicates to the contrary. The words "hereof", "herein,"
"hereunder", and other similar compounds of the word "here" shall mean and
refer to the entire Plan and not to any particular provision or
section. Whenever the words "Article" or "Section" are used in
this Plan, or a cross-reference to an "Article" or "Section" is made, the
Article or Section referred to shall be an Article or
Section of this Plan unless otherwise
specified.
|
|
(b)
|
The
Plan is intended to be a plan that is not qualified within the meaning of
Code Section 401(a) and that “is unfunded. It not intended
to be covered by ERISA, but if it is considered to be covered by ERISA, it
should be viewed as maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1). Except with respect to Plan benefits
not subject to Code Section 409A, the Plan shall be administered and
interpreted (i) to the extent possible in a manner consistent with
the intent described in the preceding sentence, and (ii) in
accordance with Code Section 409A and related Treasury
guidance.
|
1.3
|
Applicability of Code
Section 409A
.
It is
intended that if no part of a Participant
’
s Retirement
Benefit is earned or becomes vested after December 31, 2004 and there
is no material modification with respect to such benefit which would cause
it to become subject to Code Section 409A, then neither this Plan
restatement nor Code Section 409A shall apply to such
Participant
’
s Plan benefits, and the payment of such
Participant
’
s Plan benefits shall be governed by the terms of
the Plan as in effect on December 31,
2004.
|
2.1
|
Eligibility
. In
order to be eligible for participation in the Plan, a Director must be
selected by the Committee in the year preceding the year in which the
Director is eligible to participate as hereinafter
provided. The Committee, in its sole and absolute discretion,
shall determine eligibility for participation in accordance with the
purposes of the Plan.
|
2.2
|
Participation
. After
being selected by the Committee to participate in this Plan, a Director
shall, as a condition precedent to participation herein, complete and
return to the Committee a duly executed Plan Agreement and Election to
Participate electing to participate herein and agreeing to the terms and
conditions thereof, and by the execution of such Plan Agreement and
Election to Participate a Participant shall agree that all amounts
deferred thereby shall be irrevocably deferred and that in lieu thereof
the Participant shall be entitled solely to the benefits provided under
this Plan. Such Plan Agreement shall be completed and returned
to the committee at the time specified thereby, and should be subsequent
to December 31st of the year preceding the year to which the Plan
Agreement relates.
|
3.1
|
Amount and Payment of
Death Benefit
. If a Participant dies before Retirement,
before his or her Retirement Benefit commences to be paid pursuant to
Section 4.1(b) and the Plan is in effect at that time, the Bank will
pay or cause to be paid a Death Benefit to such Participant's
Beneficiary. The said Death Benefit shall be one hundred
percent (100%) of the Participant's Benefit Level as set forth in the Plan
Agreement paid monthly for the next one hundred and twenty (120)
months. Such payments shall commence effective the first day of
the month following the date of
death.
|
|
(a)
|
At
the time of the Participant's death prior to attaining his or her Normal
Retirement Date:
|
|
(i)
|
Such
Participant was a Director and had not Retired, or was Disabled or on
authorized leave of absence, his or her Retirement Benefit has not
commenced to be paid pursuant to Section 4.1(b) and all deferrals and
payments required to be made by such Participant under Sections 3.2 et.
seq. have been made, or
|
|
(ii)
|
Such
required deferrals or payments were waived pursuant to Section 3.5 because
of such Participant's Disability;
|
|
(b)
|
The
Participant's Plan Agreement had been kept in force throughout the period
commencing on the date of such Plan Agreement and ending on the date of
his or her death;
|
|
(c)
|
The
Participant's death was due to causes other than suicide within two (2)
years of the date of his or her original Plan Agreement or within two (2)
years of the date of any amendment to his or her Plan Agreement or any
subsequent Plan Agreement resulting from additional benefits granted
because of an increase in the Participant's Benefit Level; but the
Participant's suicide shall relieve the Bank only of its obligation to pay
that portion of the Death Benefit that was granted within two (2) years
prior to the date of such suicide;
|
|
(d)
|
The
Participant's death is determined not to be from a bodily or mental cause
or causes, information about which was withheld, or knowingly concealed,
or falsely provided by the Participant when requested by the Bank to
furnish evidence of good health upon the Participant's enrolling in the
Plan or upon an application for an increase in benefits because of an
increase in Participant's Benefit Level;
and
|
|
(e)
|
Proof
of death in such form as determined acceptable by the Committee is
furnished.
|
3.2
|
Amount of Participant
Deferral and Payments
. In consideration for the Death
Benefit selected in Participant's Plan Agreement, each Participant shall
defer an amount of his or her compensation in such amounts and at such
times as shall be determined by the Committee and as specified in his or
her Election to Participate, and the Committee may change the amount of
such deferral prospectively on a calendar year by calendar year basis,
provided that any change is made prior to the beginning of the calendar
year for which it is effective. If a Participant is authorized
to take a leave of absence from his or her relationship or, subject to the
provisions of Section 3.5, is Disabled, the Participant shall be required
to make payments to the Bank in accordance with this Article III in
order to maintain his or her Plan Agreement in force. A
Participant's obligation to defer an amount of his or her compensation in
accordance with this Article III or to make the payments required by
this Article III shall be stated in his or her Plan Agreement and
Election to Participate, shall commence on the date his or her Plan
Agreement becomes effective, and shall continue thereafter during the term
of his or her Plan Agreement or until the earlier of such Participant's
death or attainment of his or her Normal Retirement Date. A
Participant shall have the right, prospectively on a calendar year by
calendar year basis, to increase or decrease the amount of his or her
deferral initially selected by him by amending his or her Plan Agreement
and Election to Participate in accordance with the rules adopted by the
Committee for this purpose, provided that any change is agreed to prior to
the beginning of the calendar year for which it is
effective.
|
3.3
|
Time and Manner of
Deferring or Making Payments
. A Participant shall, in
his or her Plan Agreement and Election to Participate, authorize the
Employer to defer an amount of such Participant's compensation equal to
the amount specified pursuant to Section 3.2. A Participant who
is on authorized leave of absence or is Disabled and who is required to
make the payments required in this Article III shall make such
payments at such time and in such manner as the Committee shall provide;
provided, however, that the Participant shall not continue to make such
payments during any period in which a portion of his or her compensation
is being deferred or such payments have been waived pursuant to Section
3.5.
|
3.4
|
Participant Deferrals
and Payments - Use and Forfeitability
. The amount of
each Participant's compensation deferred pursuant to Sections 3.2 and 3.3
shall be and remain solely the property of the Bank and the amount
collected by the Bank pursuant to Sections 3.2 and 3.3 from each
Participant who is on an authorized leave of absence or Disabled shall be
and become solely the property of the Bank, and a Participant shall have
no right thereto, nor shall the Bank be obligated to use such amounts in
any specific manner. Except as provided in Article IV, if a
Participant's death occurs under circumstances other than those specified
in Section 3.1, no benefit shall be payable hereunder or under his or her
Plan Agreement to his or her Beneficiary or any other person or entity on
his or her behalf, and any payments made by such Participant under
Sections 3.2 and 3.3 shall be
forfeited.
|
3.5
|
Waiver of Participant
Deferral or Payments
. If a Participant becomes Disabled
before attaining his or her Normal Retirement Date, the Disability
continues for more than three (3) months, and the Disability benefit
specified in Item 4 of the Participant's Plan Agreement is in effect,
such Participant shall not be required to defer a portion of his or her
compensation pursuant to Sections 3.2 and 3.3 or make the payments
provided for in Sections 3.2 and 3.3, commencing with the fourth (4th)
month following the date of such Disability and continuing thereafter for
as long as such Disability
continues.
|
3.6
|
Required Payments and
Leave of Absence
. If a Participant is authorized by the
Bank for any reason, including military, medical or other, to take a leave
of absence, such Participant shall be required to make payments in order
to maintain his or her Plan Agreement in force (first out of his or her
compensation during such leave of absence and, if his of her compensation
is insufficient, from his or her personal assets). Such
required payments shall be an amount equal to the amount of the
Participant's compensation that is to be deferred under the terms of his
or her Plan Agreement and Election to Participate. A
Participant required to make payments under this Section 3.6 shall
continue making such required payments until the earlier of (i) the
date he or she returns to his or her duties following a leave of absence,
(ii) the date such payments are waived pursuant to Section 3.5, or
(iii) the effective date that he or she enters into a new Plan
Agreement and Election to Participate. If a Participant's
payments are waived pursuant to Section 3.5 and subsequently the
Participant returns to his or her duties, he or she shall be required to
resume deferring his or her compensation, in the amount specified
above.
|
3.7
|
Failure to Make
Required Payments
. Failure to make payments required by
Section 3.6 shall cause Participant's Plan Agreement to terminate without
the necessity of any notice from either party to the
other. From and after such termination, except as provided in
Section 4.5 hereof, neither party shall have any further obligation to the
other party under this Plan or such Plan
Agreement.
|
3.8
|
Disability
.
|
|
(a)
|
If
a Participant becomes Disabled before attaining his or her Normal
Retirement Date and subsequently dies before Retirement and before his or
her Retirement Benefit commences to be paid pursuant to
Section 4.1(b) and while the waiver described in Section 3.5 is in
effect, the Death Benefit provided in this Article III shall be
paid. If a Participant Retires while the waiver described in
Section 3.5 after becoming Disabled or attains his or her Normal
Retirement Date or commences to be paid pursuant to Section 4.1(b),
the Retirement Benefit provided in Article IV shall be
paid.
|
|
(b)
|
For
purposes hereof, either Disability and Disabled means unable to engage in
any substantial gainful activity (1) 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 not less
than twelve (12) months, or (2) 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 not less
than twelve (12) months, where the Participant is receiving income
replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Participant’s
Employer. For purposes of this Plan, a Participant shall be
deemed Disabled if determined to be totally disabled by the Social
Security Administration. A Participant shall also be deemed
Disabled if determined to be disabled in accordance with the applicable
disability insurance program of such Participant’s Employer, provided that
the definition of “disability” applied under such disability insurance
program complies with the requirements
hereof.
|
|
(1)
|
such
Disability was not either intentionally self-inflicted or caused by
illegal or criminal acts of the
Participant;
|
|
(2)
|
the
Participant was a Director at the time he or she became Disabled (or was
then on an authorized Leave of Absence) and had made all payments required
hereunder;
|
|
(3)
|
the
Participant's Plan Agreement has been kept in force until the time of such
Disability; and
|
|
(4)
|
the
Committee has approved the waiver of such fee and such waiver is so noted
in the Participant's Plan
Agreement.
|
4.1
|
Payment at Normal
Retirement Date
.
|
|
(a)
|
If
a Participant has remained a Director until his or her Normal Retirement
Date and shall then Retire, and if the Plan and his or her Plan Agreement
have been kept in force, the Bank shall pay or cause to be paid to such
Participant, as a Retirement Benefit (herein so called), the amount per
month specified in his or her Plan Agreement as a Retirement
Benefit. Payment of such monthly amount shall commence on the
Participant's Normal Retirement Date and shall continue for the life of
the Participant. If such Participant shall die before receiving
three hundred (300) monthly payments, the Retirement Benefit will be
continued to the Participant's Beneficiary as set forth in the Beneficiary
Designation until an aggregate of three hundred (300) monthly payments has
been paid to the Participant and his or her
Beneficiary.
|
|
(b)
|
This
Section 4.1(b) shall apply, effective January 1,
2008. In lieu of payment pursuant to the other applicable
provisions of this Article IV, if (1) any
portion of a Participant
’
s Retirement
Benefit is earned or becomes vested after December 31, 2004 and is
thus subject to Code Section 409A, (2) such a
Participant
has remained a Director until his or her Normal Retirement Date (or, if
later, until February 29, 2008), and (3) the Plan and such
Participant’s Plan Agreement have been kept in force until such time, the
Retirement Benefit of such a Participant shall commence to be paid on the
Participant's Normal Retirement Date (or if later, on March 1, 2008)
and shall continue for the life of the Participant. The amount
of such monthly payment shall be the amount per month specified in the
Participant's Plan Agreement on the Participant's Normal Retirement Date
(increased where applicable for interest at the rate of four percent (4%),
or such other rate as the Committee may determine from time to time, per
annum, compounded annually, to the Participant's Normal Retirement Date
(or if later, to March 1, 2008). If such Participant shall
die before receiving three hundred (300) monthly payments, the Retirement
Benefit will be continued to the Participant's Beneficiary as set forth in
the Beneficiary Designation until an aggregate of three hundred (300)
monthly payments has been paid to the Participant and his or her
Beneficiary. Notwithstanding any other provisions of the Plan,
in the event a Participant commences to receive his or her Retirement
Benefit pursuant to this Section 4.1(b), there shall be no further
accrual of, or any increase to, the Participant’s Retirement Benefit under
the Plan after the Participant’s Normal Retirement Date (or, if later,
February 29, 2008).
|
4.2
|
Post Retirement Death
Benefit
. If a Participant dies after Retirement or
commencement of his or her Retirement Benefit pursuant to
Section 4.1(b) but before the applicable Retirement Benefit is paid
in full, the unpaid Retirement Benefit payments to which such Participant
is entitled shall continue and be paid to that Participant's
Beneficiary. Such payments shall be made in accordance with the
payment schedule to that Participant pursuant to Section 4.1 of the
Plan.
|
4.3
|
Exclusivity of Post
Retirement Death Benefit
. No Death Benefit as defined in
Article III shall be paid to the Beneficiary of a Participant who dies
after Retirement or commencement of his or her Retirement Benefit pursuant
to Section 4.1(b).
|
4.4
|
Accrual of Retirement
Benefit
. A Participant who ceases to be a Director
before completion of one (1) full year of participation in the Plan,
except as a result of death, Retirement, or Disability, shall not be
entitled to any benefits hereunder and the Bank shall have no obligation
hereunder to such Participant.
|
4.5
|
Deferred Termination
Benefit
. A Participant who ceases to be a Director after
the completion of one (1) full year of participation in the Plan shall
receive a portion of his or her monthly Retirement Benefit upon the
earlier of (i) the Participant's death or (ii) attainment of his or her
Normal Retirement Date. Said portion shall be the monthly
amount of the Retirement Benefit set forth in the Participant's Plan
Agreement multiplied by a fraction, the numerator of which is the number
of whole years said Director was a Participant in the Plan and the
denominator of which is the number of whole years between such
Participant's age at entry into the Plan and the Participant's age at his
or her Normal Retirement Date. If the Participant's benefits
have been increased since the Participant's initial entry into this Plan,
or successor or predecessor plans, the reduced monthly Retirement Benefit
shall be determined by reducing each incremental benefit increase in
accordance with the formula. The resulting reduced monthly
amount shall be the only benefit to which such Participant is
entitled. The reduced monthly amount will be payable for life
at the attainment of the Participant's Normal Retirement Date and shall be
continued to Participant's Beneficiary as set forth in the Beneficiary
Designation until a total of three hundred (300) monthly payments
including those paid to Participant have been made. In the
event the Participant dies before attaining his or her Normal Retirement
Date, the reduced monthly amount will be payable to Participant's
Beneficiary as set forth in the Beneficiary Designation. Such
payments shall commence at the attainment of what would have been the
Participant's Normal Retirement Date and shall be payable for three
hundred (300) months.
|
6.1
|
Benefits Payable from
General Assets
. Amounts payable hereunder shall be paid
exclusively from the general assets of the Bank, and no person entitled to
payment hereunder shall have any claim, right, security interest, or other
interest in any fund, trust, account, or other asset of the Bank that may
be looked to for such payment. The Bank's liability for the
payment of benefits hereunder shall be evidenced only by this Plan and
each Plan Agreement entered into between the Bank and a
Participant.
|
6.2
|
Investments to
Facilitate Payment of Benefits
. Although the Bank is not
obligated to invest in any specific asset or fund in order to provide the
means for the payment of any liabilities under this Plan, the Bank may
elect to do so and, in such event, no Participant shall have any interest
whatever in such asset or fund. As a condition precedent to the
Bank's obligation to provide any benefits, including incremental increases
in benefits, under this Plan, the Participant shall, if so requested by
the Bank, provide evidence of insurability at standard and other rates, in
such amounts, and with such insurance carrier or carriers as the Bank may
require, including the results and reports of previous Bank and other
insurance carrier physical examinations, taking such additional physical
examinations as the Bank may request, and taking any other action that the
Bank may request, and shall consent to the Bank’s acquisition of insurance
on his or her life. If a Participant is requested to and does
not or cannot provide evidence of insurability as specified in the
immediately preceding sentence, then the Bank shall have no further
obligation to such Participant under this Plan, and such Participant's
Plan Agreement shall terminate, except as to benefits previously
granted. Notwithstanding the foregoing, if a Participant cannot
provide evidence of insurability at standard rates or for the amounts
initially contemplated in connection with his or her participation in the
Plan, the Bank may, at its discretion, permit the Participant to
participate herein for such benefits and upon such deferral of his or her
compensation as the Bank may, in its sole discretion, deem appropriate in
a manner which is not violative of Code Section 409A and is set out
in his or her Plan Agreement.
|
6.3
|
Bank
Obligation
. The Bank shall have no obligation of any
nature whatsoever to a Participant under this Plan or a Participant's Plan
Agreement, except otherwise expressly provided herein and in such Plan
Agreement.
|
6.4
|
Withholding of
Information, Etc
. If, in connection with a Participant's
enrolling in or applying for incremental benefit increases under the Plan,
the Bank requests the Participant to furnish evidence of insurability, the
Participant dies, and it is determined that the Participant withheld,
knowingly concealed, or knowingly provided false information about the
bodily or mental condition or conditions that caused the Participant's
death, the Bank shall have no obligation to provide the benefits
contracted for on the basis of such withholding, concealment, or false
information.
|
8.1
|
Termination of
Participation - General
. A Participant reserves the
right to terminate his or her participation in this Plan and his or her
Plan Agreement at his or her election at any time by giving the Committee
written notice of such termination not less than thirty (30) days prior to
an anniversary date of the date of execution of his or her Plan
Agreement. A Participant's termination shall be effective as
soon as administratively convenient after such anniversary
date. If a Participant terminates his or her participation in
the Plan, such participation termination must not be violative of Code
Section 409A and, in the case of a Participant who has agreed to a
deferral of compensation pursuant to the Plan, must be effected as of the
beginning of a calendar year, or as of a specified date is a calendar
year, following the calendar year in which the Participant delivers
written notice of his or her participation termination to the
Committee.
|
8.2
|
Rights After
Termination of Participation
. Participants who elect to
terminate participation in the Plan after one (1) full year of
participation but before eligibility for Retirement will be entitled to
the same benefits as a Participant who ceases to be a Director as
described in Section 4.5. Such Participants will not be
entitled to a Death Benefit under
Article III.
|
9.1
|
Termination Amendment,
Etc
. The Bank reserves the right to terminate, amend,
modify or supplement this Plan, wholly or partially, and from time to
time, at any time. The Bank likewise reserves the right to
terminate, amend, modify, or supplement any Plan Agreement, wholly or
partially, from time to time. Such right to terminate, amend,
modify, or supplement this Plan or any Plan Agreement shall be exercised
for the Bank by the Committee; provided, however,
that:
|
|
(a)
|
Except
as deemed appropriate to comply with Code Section 409A, no action to
terminate this Plan or a Plan Agreement shall be taken except upon written
notice to each Participant to be affected thereby, which notice shall be
given not less than thirty (30) days prior to such action;
and
|
|
(b)
|
The
Committee shall take no action to terminate this Plan or a Plan Agreement
with respect to a Participant or his or her Beneficiary after the payment
of any benefit has commenced in accordance with Article III or
Article IV but has not been
completed.
|
9.2
|
Rights and Obligations
Upon Termination
. Upon the termination of this Plan or
any Plan Agreements, by either the Committee or a Participant in
accordance with the provisions for such termination, neither this Plan nor
the Plan Agreement shall be of any further force and effect, and no party
shall have any further obligation under either this Plan or any Plan
Agreement so terminated except as may be provided for in Section 4.5,
Section 9.3, or the provisions of this
Article IX.
|
9.3
|
Rights and Obligations
Upon Termination as Result of "Change in Control"
. In
the event the Bank or Holding Company should undergo a Change in Control
to another corporation, firm or person and within three (3) years of such
Change in Control such corporation, firm or person takes action to
terminate this Plan or a Participant in the Plan, a Participant who is a
Director at such time will, nevertheless, be entitled to a portion of his
or her monthly Retirement Benefit upon the earlier of (i) the
Participant's death or (ii) attainment of his or her Normal Retirement
Date. Said portion shall be the monthly amount of the
Retirement Benefit set forth in the Participant's Plan Agreement
multiplied by a fraction, not to exceed one (1), the numerator of which is
the number of whole years said Director was a Participant in the Plan
plus, in the case of a Participant who has not attained his or her Normal
Retirement Date (or, if later, February 29, 2008), five (5)
additional years and the denominator of which is the number of whole years
between such Participant's age at entry into the Plan and the
Participant's age at his or her Normal Retirement Date. If the
Participant's benefits have been increased since the Participant's initial
entry into this Plan, or successor or predecessor plans, the reduced
monthly Retirement Benefit shall be determined by reducing each
incremental benefit increase in accordance with the
formula. The resulting reduced monthly amount shall be the only
benefit to which such Participant is entitled. The reduced
monthly amount will be payable for life at the attainment of the
Participant's Normal Retirement Date (subject to delay if required
pursuant to Code Section 409A), and shall be continued to
Participant's Beneficiary as set forth in the Beneficiary Designation
until a total of three hundred (300) monthly payments including those paid
to Participant have been made. In the event the Participant
dies before attaining his or her Normal Retirement Date, the reduced
monthly amount will be payable to Participant's Beneficiary as set forth
in the Beneficiary Designation. Such payments shall commence at
the attainment of what would have been the Participant's Normal Retirement
Date and shall be payable for three hundred (300)
months.
|
12.1
|
Appointment of
Committee
. The general administration of this Plan, and
any Plan Agreements executed hereunder, as well as construction and
interpretation thereof, shall be vested in the Committee, the number and
members of which shall be designated and appointed from time to time by,
and shall serve at the pleasure of, the Board of Directors. Any
such member of the Committee may resign by notice in writing filed with
the secretary of the Committee. Vacancies shall be filled
promptly by the Board of Directors but any vacancies remaining unfilled
for ninety days may be filled by a majority vote of the remaining members
of the Committee. Each person appointed a member of the
Committee shall signify his or her acceptance by filing a written
acceptance with the secretary of the
Committee.
|
12.2
|
Committee
Officials
. The Board of Directors shall designate one of
the members of the Committee as chairman and shall appoint a secretary who
need not be a member of the Committee. The secretary shall keep
minutes of the Committee's proceedings and all data, records and documents
relating to the Committee's administration of this Plan and any Plan
Agreements executed hereunder. The Committee may appoint from
its number such subcommittees with such powers as the Committee shall
determine and may authorize one or more of its members or any agent to
execute or deliver any instrument or make any payment on behalf of the
Committee.
|
12.3
|
Committee
Action
. All resolutions or other actions taken by the
Committee shall be by the vote of a majority of those members present at a
meeting at which a majority of the members are present, or in writing by
all the members at the time in office if they act without a
meeting.
|
12.4
|
Committee Rules and
Powers - General
. Subject to the provisions of this
Plan, the Committee shall from time to time establish rules, forms, and
procedures for the administration of this Plan, including Plan
Agreements. The Committee shall have the exclusive right to
determine, among other matters, (i) Disability with respect to a
Participant and (ii) the degree thereof, either or both determinations to
be made on the basis of such medical and/or other evidence that the
Committee, in its sole and absolute discretion, may
require. Such decisions, actions, and records of the Committee
shall be conclusive and binding upon the Bank and all persons having or
claiming to have any right or interest in or under this
Plan.
|
12.5
|
Reliance on
Certificate, Etc
. The members of the Committee and the
officers and directors of the Bank shall be entitled to rely on all
certificates and reports made by any duly appointed accountants, and on
all opinions given by any duly appointed legal counsel. Such
legal counsel may be counsel for the
Bank.
|
12.6
|
Liability of
Committee
. No member of the Committee shall be liable
for any act or omission of any other member of the Committee, or for any
act or omission on his or her own part, excepting only his or her own
willful misconduct. The Bank shall indemnify and save harmless
each member of the Committee against any and all expenses and liabilities
arising out of his or her membership on the Committee, excepting only
expenses and liabilities arising out of his or her own willful
misconduct. Expenses against which a member of the Committee
shall be indemnified hereunder shall include, without limitation, the
amount of any settlement or judgment, costs, counsel fees, and related
charges reasonably incurred in connection with a claim asserted, or a
proceeding brought, or settlement thereof. The foregoing right
of indemnification shall be in addition to any other rights to which any
such member may be entitled as a matter of
law.
|
12.7
|
Determination of
Benefits
. In addition to the powers hereinabove
specified, the Committee shall have the power to compute and certify,
under this Plan and any Plan Agreement, the amount and kind of benefits
from time to time payable to Participants and their Beneficiaries, and to
authorize all disbursements for such
purposes.
|
12.8
|
Information to
Committee
. To enable the Committee to perform its
functions, the Bank shall supply full and timely information to the
Committee on all matters relating to the compensation of all Participants,
their retirement, death or other cause for termination of relationship,
and such other pertinent facts as the Committee may
require.
|
12.9
|
Manner and time of
Payment of Benefits
. The Committee shall have the power,
in its sole and absolute discretion, to change the manner and time of
payment of benefits to be made to a Participant or his or her Beneficiary
from that set forth in the Participant's Plan Agreement if requested to do
so by such Participant or
Beneficiary.
|
13.1
|
Named
Fiduciary
. The Named Fiduciary of the Plan for purposes
of the claims procedure under this Plan is the Chief Financial Officer;
provided, however, that if the claim relates to a Plan benefit of the
Chief Financial Officer, the Named Fiduciary shall be the person or
committee designated by the
Bank.
|
13.2
|
Right to Change Named
Fiduciary
. The Bank shall have the right to change the
Named Fiduciary created under this Plan. The Bank shall also
have the right to change the address and telephone number of the Named
Fiduciary. The Bank shall give the Participant written notice
of any change of the Named Fiduciary, or any change in the address and
telephone number of the Named
Fiduciary.
|
13.3
|
Procedure for
Claims
. Benefits shall be paid in accordance with the
provisions of this Plan. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being referred to
below as a “Claimant”) may deliver to the Named Fiduciary a written claim
for a determination with respect to the amounts distributable to such
Claimant from the Plan. The written claim shall be mailed or
delivered to the Named Fiduciary. If such a claim relates to
the contents of a notice received by the Claimant, the claim must be made
within sixty (60) days after such notice was received by the
Claimant. All other claims must be made within one hundred and
eighty (180) days of the date on which the event that caused the claim to
arise occurred. The claim must state with particularity the
determination desired by the
Claimant.
|
13.4
|
Notification of Denial
of Claim
. The Named Fiduciary shall consider a
Claimant's claim within a reasonable time, but no later than ninety (90)
days after receiving the claim. If the Named Fiduciary
determines that special circumstances require an extension of time for
processing the claim, written notice of the extension shall be furnished
to the Claimant prior to the termination of the initial ninety (90) day
period. In no event shall such extension exceed a period of
ninety (90) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Named Fiduciary expects to
render the benefit determination. The Named Fiduciary shall
notify the Claimant in writing:
|
|
(a)
|
that
the Claimant's requested determination has been made, and that the claim
has been allowed in full; or
|
|
(b)
|
that
the Named Fiduciary has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must set
forth in a manner calculated to be understood by the
Claimant:
|
|
(1)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
|
(2)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
|
(3)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary; and
|
|
(4)
|
an
explanation of the claim review procedure set forth in Section 13.5
below.
|
13.5
|
Review of a Denied
Claim
. On or before sixty (60) days after receiving a
notice from the Named Fiduciary that a claim has been denied, in whole or
in part, a Claimant (or the Claimant's duly authorized representative) may
file with the Named Fiduciary a written request for a review of the denial
of the claim. The Claimant (or the Claimant's duly authorized
representative):
|
|
(a)
|
may,
upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant to the claim for
benefits;
|
|
(b)
|
may
submit written comments or other documents;
and/or
|
|
(c)
|
may
request a hearing, which the Named Fiduciary, in its sole discretion, may
grant.
|
13.6
|
Decision on
Review
. The Named Fiduciary shall render its decision on
review promptly, and no later than sixty (60) days after the Named
Fiduciary receives the Claimant’s written request for a review of the
denial of the claim. If the Named Fiduciary determines that
special circumstances require an extension of time for processing the
claim, written notice of the extension shall be furnished to the Claimant
prior to the termination of the initial sixty (60) day
period. In no event shall such extension exceed a period of
sixty (60) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Named Fiduciary expects to
render the benefit determination. In rendering its decision,
the Named Fiduciary shall take into account all comments, documents,
records and other information submitted by the Claimant relating to the
claim, without regard to whether such information was submitted or
considered in the initial benefit determination. The decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
|
|
(a)
|
specific
reasons for the decision;
|
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon which the decision was
based; and
|
|
(c)
|
a
statement that the Claimant is entitled to receive, upon request and free
of charge, reasonable access to and copies of, all documents, records and
other information relevant to the Claimant’s claim for
benefits.
|
13.7
|
Legal
Action
. A Claimant's compliance with the foregoing
provisions of this Article XIII is a mandatory prerequisite to a
Claimant's right to commence any legal action with respect to any claim
for benefits under this Plan.
|
15.1
|
Execution of Receipts
and Releases
. Any payment to any Participant, a
Participant's legal representative, or Beneficiary in accordance with the
provisions of this Plan or Plan Agreement executed hereunder shall, to the
extent thereof, be in full satisfaction of all claims hereunder against
the Bank. The Bank may require such Participant, legal
representative, or Beneficiary, as a condition precedent to such payment,
to execute a receipt and release therefore in such form as it may
determine.
|
15.2
|
No Guarantee of
Interests
. Neither the Committee nor any of its members
guarantees the payment of any amounts which may be or become due to any
person or entity under this Plan or any Plan Agreement executed
hereunder. The liability of the Bank to make any payment under
this Plan or any Plan Agreement executed hereunder is limited to the then
available assets of the Bank.
|
15.3
|
Bank
Records
. Records of the Bank as to a Participant's
relationship, termination of relationship and the reason therefor
authorized leaves of absence, and compensation shall be conclusive on all
persons and entities, unless determined to be
incorrect.
|
15.4
|
Evidence
. Evidence
required of anyone under this Plan and any Plan Agreement executed
hereunder may be by certificate, affidavit, document, or other information
which the person or entity acting on it considers pertinent and reliable,
and signed, made, or presented by the proper party or
parties.
|
15.5
|
Notice
. Any
notice which shall be or may be given under this Plan or a Plan Agreement
executed hereunder shall be in writing and shall be mailed by United
States mail, postage prepaid. If notice is to be given to the
Bank, such notice shall be addressed to the Bank
at:
|
15.6
|
Change of
Address
. Any party may, from time to time, change the
address to which notices shall be mailed by giving written notice of such
new address.
|
15.7
|
Effect of
Provisions
. The provisions of this Plan and of any Plan
Agreement executed hereunder shall be binding upon the Bank and its
successors and assigns, and upon a Participant, his or her Beneficiary,
assigns, heirs, executors, and
administrators.
|
15.8
|
Headings
. The
titles and headings of Articles and Sections are included for convenience
of reference only and are not to be considered in the construction of the
provisions hereof or any Plan Agreement executed
hereunder.
|
15.9
|
Governing
Law
. All questions arising with respect to this Plan and
any Plan Agreement executed hereunder shall be determined by reference to
the laws of the State of Mississippi, as in effect at the time of their
adoption and execution,
respectively.
|
|
_____ |
To
participate in the Plan.
|
|
_____ |
Not
to participate in the Plan.
|
1.
|
Participant's Benefit
Level:
$
per
month.
|
2.
|
Death Benefit (Article III of
Plan):
|
3.
|
Retirement Benefit (Article IV
of Plan):
|
|
(a)
|
Retirement
at Normal Retirement Date: $
per
month for life. If Participant shall die prior to receiving
three hundred (300) monthly payments, said amount shall be continued to
Participant's Beneficiary in accordance with Beneficiary Designation until
the balance of the three hundred (300) monthly payments has been
paid.
|
|
(b)
|
Retirement
after Normal Retirement Date: Amounts to be determined and paid
as specified by Section 4.1(b), if any, of the
Plan.
|
|
(c)
|
Termination
Benefit: Amounts to be determined and paid as specified by
Section 4.5 and/or Section 9.3 of the
Plan.
|
4.
|
Disability
Benefit
: In the event of Disability (as defined in
Section 1.1 of the Plan), Participant's deferral shall be waived
pursuant to Section 3.5 of the
Plan.
|
5.
|
Participant Contributions
(Article III of Plan):
The Participant’s deferral
from compensation with respect to the Death Benefit under Article III
of the Plan is
|
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
|
||
By
|
||
Title
|
||
PARTICIPANT
|
||
(Signature)
|
||
(Type
or print name)
|
||
(Address
of Participant)
|
|
||
1.
|
Participant:
|
|
2.
|
Scope:
This
Beneficiary Designation applies to all benefits of the Plan to which the
above-named Participant has the right to name the
Beneficiary.
|
3.
|
COUNSEL:
THE
DESIGNATION OF A BENEFICIARY OR BENEFICIARIES IN ITEMS 4, 5, AND 6 BELOW
MAY HAVE SIGNIFICANT ESTATE AND GIFT TAX CONSEQUENCES TO THE
PARTICIPANT. ACCORDINGLY, THE PARTICIPANT SHOULD SEEK THE
ADVICE OF PROFESSIONAL COUNSEL WHO IS FAMILIAR WITH THE ESTATE AND GIFT
TAX ASPECTS OF NONQUALIFIED RETIREMENT AND SALARY CONTINUATION PLANS
BEFORE COMPLETING THIS FORM.
|
4.
|
Identification
of Beneficiaries:
|
A.
|
Primary
Beneficiary:
|
||
B.
|
Secondary
Beneficiary:
|
||
5.
|
Methods
of Payment (Check One):
|
____
|
Alternative
1
. Beneficiary shall mean the Primary Beneficiary if
such Primary Beneficiary survives Participant, and shall mean the Primary
Beneficiary's estate if such Primary Beneficiary survives Participant but
thereafter dies. The term Beneficiary shall mean the Secondary
Beneficiary if the Primary Beneficiary fails to survive Participant, and
shall mean the Secondary Beneficiary's estate when the Secondary
Beneficiary thereafter dies. If both the Primary and Secondary
Beneficiaries fail to survive Participant, the term Beneficiary shall mean
the Participant's estate.
|
____
|
Alternative
2
. Beneficiary shall mean the Primary Beneficiary if
such Primary Beneficiary survives Participant, and shall mean the
Secondary Beneficiary if either the Primary Beneficiary fails to survive
Participant or the Primary Beneficiary survives Participant but thereafter
dies. If both the Primary and Secondary Beneficiaries fail to
survive Participant, the term Beneficiary shall mean the Participant's
estate.
|
____
|
Alternative 3 . |
|
____
|
Alternative
1
. For purposes of this Beneficiary Designation, no
person shall be deemed to have survived the Participant if that person
dies within thirty (30) days of the Participant's
death.
|
____
|
Alternative
2
. If the Participant and the Participant's spouse die
under circumstances such that there is insufficient evidence to determine
the order of their deaths or if the Participant's spouse outlives the
Participant for any time whatsoever, the Participant's spouse shall be
deemed to have survived the Participant. For all other purposes
of this Beneficiary Designation, no person shall be deemed to have
survived the Participant if that person dies within thirty (30) days of
the Participant's death.
|
7.
|
Duration:
This
Beneficiary Designation is effective until the Participant files another
such Designation with the Bank. Any previous Beneficiary
Designations are hereby revoked.
|
8.
|
Execution:
|
Date:
|
Participant:
|
||
Witness:
|
9.
|
Approval:
This
Beneficiary Designation is acknowledged and approved this
day of ___________________, 20
and
shall be effective as of the date executed by the Participant
above.
|
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
|
||
By
|
||
Title
|
1.1
|
Definitions
. For
purposes of this Plan, the following phrases or terms shall have the
indicated meanings unless otherwise clearly apparent from the
context:
|
|
(a)
|
"
Actuarially
Reduced
" shall mean the present value of Participant's Retirement
Benefit as set forth in Item 3(a) of his or her Plan Agreement at the time
of Participant's Early Retirement Date (or other applicable time) using a
discount rate equal to the Aa Corporate Bond Rate as published by Moody's
Investors Services, Inc. or its successor as of the date of Early
Retirement (or other applicable
date).
|
|
(b)
|
"
Bank
" shall
mean
Trustmark National
Bank, Jackson, Mississippi
and any Subsidiary that duly adopts the
Plan as provided in Article XIV hereof. Where the context
dictates, the term "Bank" as used herein refers to the particular Bank
that has entered into a Plan Agreement with a particular
Participant.
|
|
(c)
|
"
Beneficiary
"
shall mean the person, persons or estate of a Participant, entitled to
receive any benefits subsequent to the death of a Participant under a Plan
Agreement entered into in accordance with the terms of this
Plan.
|
|
(d)
|
"
Beneficiary
Designation
" shall mean the form of written agreement, attached
hereto as Annex II, by which the Participant names the Beneficiary(ies) of
the Plan.
|
|
(e)
|
"
Board of
Directors
" shall mean the Board of Directors of
Trustmark National Bank,
Jackson, Mississippi
unless otherwise indicated or the context
otherwise requires.
|
|
(f)
|
"
Buyout
" shall
mean a transaction or series of related transactions by which the Bank or
Holding Company is sold, either through the sale of a Controlling Interest
in the Bank's or Holding Company’s voting stock or through the sale of
substantially all of the Bank's or Holding Company’s assets, to a party
not having a Controlling Interest in the Bank's or Holding Company’s
voting stock.
|
|
(g)
|
"
Change in
Control
" shall mean a Buyout, Merger, or Substantial Change in
Ownership.
|
|
(h)
|
"
Code
" shall
mean the Internal Revenue Code of 1986, as the same may be amended from
time to time, or the corresponding Section of any subsequent Internal
Revenue Code, and, to the extent not inconsistent therewith, regulations
issued thereunder.
|
|
(i)
|
"
Committee
"
shall mean the Human Resources Committee of the Board of Directors of the
Holding Company (or any successor committee thereto) or any other
committee appointed by the Board of Directors of the Bank in lieu thereof
to manage and administer the Plan and individual Plan Agreements in
accordance with the provisions of Article XII
hereof.
|
|
(j)
|
"
Controlling
Interest
" shall mean ownership, either directly or indirectly, of
more than twenty percent (20%) of the Bank's or Holding Company’s voting
stock.
|
|
(k)
|
"
Covered Salary
"
shall mean the amount specified in Item 1 of the Plan Agreement that is
used as a basis for computation of Participant's Death and Retirement
Benefits pursuant to the terms and conditions of the
Plan.
|
|
(l)
|
"
Death Benefit
"
shall mean the benefit provided under Article III of the
Plan.
|
|
(m)
|
"
Disability" or
"Disabled
" shall mean that a Participant is disabled as provided in
Section 3.2.
|
|
(n)
|
"
Early Retirement
Date
" shall be the first day of the month next following the date
of a Participant's Retirement prior to his or her Normal Retirement Date
and following the month in which the Participant attains his or her
fifty-fifth (55th) birthday and has completed five (5) full years of
continuous employment as an Employee of the Bank commencing on the date of
his or her commencement of participation in the
Plan.
|
|
(o)
|
"
Employee
" shall
mean any person who is in the full time employment of the Bank or a
Subsidiary, as determined by the personnel rules and practices of the Bank
or the Subsidiary.
|
|
(p)
|
“
Employer(s)
”
shall be defined as follows:
|
|
(1)
|
Except
as otherwise provided in part (2) below, the term “Employer” shall mean
the Bank and/or any Subsidiary (now in existence or hereafter formed or
acquired) that duly adopts the Plan as provided in Article XIV
hereof.
|
|
(2)
|
For
the purpose of determining whether a Participant has experienced a
Separation from Service, the term “Employer” shall
mean:
|
|
(A)
|
The
entity for which the Participant performs services and with respect to
which the legally binding right to compensation deferred or contributed
under this Plan arises; and
|
|
(B)
|
All
other entities with which the entity described above would be aggregated
and treated as a single employer under Code Section 414(b) (controlled
group of corporations) and Code Section 414(c) (a group of trades or
businesses, whether or not incorporated, under common control), as
applicable. In order to identify the group of entities
described in the preceding sentence, the Committee shall use an ownership
threshold of at least eighty percent (80%) when applying, the applicable
provisions of (i) Code Section 1563 for determining a controlled group of
corporations under Code Section 414(b), and (ii) Treas. Reg. §1.414(c)-2
for determining the trades or businesses that are under common control
under Code Section 414(c).
|
|
(q)
|
“
ERISA
” shall
mean the Employee Retirement Income Security Act of 1974, as it may be
amended from time to time, and, to the extent not inconsistent therewith,
regulations issued thereunder.
|
|
(r)
|
"
Good Reason
"
shall mean (1) a demotion in the Employee’s functional position, or the
assignment to the Employee of duties or responsibilities which are
materially inconsistent with his or her experience and skills; or (2) a
material breach of this Plan by the Bank, provided the Bank has not
remedied such breach within thirty (30) days of receipt of written notice
of such breach.
|
|
(s)
|
"
Holding
Company
" shall mean Trustmark
Corporation.
|
|
(t)
|
"
Just Cause
"
shall mean theft, fraud, embezzlement or willful misconduct causing
significant property damage to the Bank, the Holding Company or any
Subsidiary or personal injury to another
employee.
|
|
(u)
|
"
Merger
" shall
mean a transaction or series of transactions wherein the Bank or Holding
Company is combined with another business entity, and after which the
persons or entities who had owned, either directly or indirectly, a
Controlling Interest in the Bank's or Holding Company’s voting stock own
less than a Controlling Interest in the voting stock of the combined
entity.
|
|
(v)
|
"
Normal Retirement
Date
" shall be the first day of the month following the month in
which the Participant attains his or her sixty-fifth (65th)
birthday.
|
|
(w)
|
"
Participant
"
shall mean an Employee who is selected and elects to participate in the
Plan through the execution of a Plan Agreement in accordance with the
provisions of Article II.
|
|
(x)
|
"
Plan
" shall
mean the Executive Deferral Plan of
Trustmark National Bank,
Jackson, Mississippi
as amended from time to
time.
|
|
(y)
|
"
Plan Agreement
"
shall mean the form of written agreement, attached hereto as Annex I,
which is entered into from time to time by and between the Bank and an
Employee selected to become a Participant as a condition to participation
in the Plan. Each Plan Agreement executed by a Participant
shall provide for the entire benefit to which such Participant is entitled
under the Plan, and the Plan Agreement bearing the latest date shall
govern such entitlement.
|
|
(z)
|
"
Retirement
" and
"
Retire
"
shall mean severance of employment with the Bank at or after the
attainment of his or her Normal Retirement Date (sometimes referred to as
“Normal Retirement”) or, if earlier, at or after attainment of his or her
Early Retirement Date (sometimes referred to as “Early Retirement”), in
either case where Just Cause does not
exist.
|
|
(aa)
|
"
Retirement
Benefit
" shall mean the benefit provided under Article IV of the
Plan.
|
|
(bb)
|
“
Separation from
Service
” or “
Separate from
Service
” shall mean a termination of services provided by a
Participant to his or her Employer, whether voluntarily or involuntarily,
other than by reason of death or Disability, as determined by the
Committee in accordance with Treas. Reg. §1.409A-1(h). In
determining whether a Participant has experienced a Separation from
Service, the following provisions shall
apply:
|
|
(1)
|
For
a Participant who provides services to an Employer as an employee, except
as otherwise provided in part (3) below, a Separation from Service shall
occur when such Participant has experienced a termination of employment
with such Employer. A Participant shall be considered to have
experienced a termination of employment when the facts and circumstances
indicate that the Participant and his or her Employer reasonably
anticipate that either (i) no further services will be performed for the
Employer after a certain date, or (ii) that the level of bona fide
services the Participant will perform for the Employer after such date
(whether as an employee or as an independent contractor) will permanently
decrease to less than fifty percent (50%) of the average level of bona
fide services performed by such Participant (whether as an Employee or an
independent contractor) over the immediately preceding thirty-six (36)
month period (or the full period of services to the Employer if the
Participant has been providing services to the Employer less than
thirty-six (36) months).
|
|
(2)
|
For
a Participant who provides services to an Employer as an independent
contractor, except as otherwise provided in part (3) below, a Separation
from Service shall occur upon the expiration of the contract (or in the
case of more than one contract, all contracts) under which services are
performed for such Employer, provided that the expiration of such
contract(s) is determined by the Committee to constitute a good-faith and
complete termination of the contractual relationship between the
Participant and such Employer.
|
|
(3)
|
For
a Participant who provides services to an Employer as both an employee and
an independent contractor
,
a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an employee and as an
independent contractor, as determined in accordance with the provisions
set forth in parts (1) and (2) above, respectively. Similarly,
if a Participant either (i) ceases providing services for an Employer as
an independent contractor and begins providing services for such Employer
as an employee, or (ii) ceases providing services for an Employer as an
employee and begins providing services for such Employer as an independent
contractor, the Participant will not be considered to have experienced a
Separation from Service until the Participant has ceased providing
services for such Employer in both capacities, as determined in accordance
with the applicable provisions set forth in parts (1) and (2) above.
|
|
(cc)
|
"
Subsidiary
"
shall mean any business organization in which
Trustmark National Bank,
Jackson, Mississippi
, directly or indirectly, owns an interest,
excluding ownership interests
Trustmark National Bank,
Jackson, Mississippi
may hold in their fiduciary capacities as
trustee or otherwise, and any other business organization that the Board
of Directors designates as a Subsidiary for purposes of this Plan,
provided in each such case the business organization would be aggregated
and treated as a single employer with
Trustmark National Bank,
Jackson, Mississippi
under Code Section 414(b) (controlled group of
corporations) and Code Section 414(c) (a group of trades or businesses,
whether or not incorporated, under common control), as
applicable. In order to identify the group of entities
described in the preceding sentence, the Committee shall use an ownership
threshold of at least eighty percent (80%) when applying, the applicable
provisions of (1) Code Section 1563 for determining a controlled group of
corporations under Code Section 414(b), and (2) Treas. Reg. §1.414(c)-2
for determining the trades or businesses that are under common control
under Code Section 414(c).
|
|
(dd)
|
"
Substantial Change in
Ownership
" shall mean a transaction or series of transactions in
which a Controlling Interest in the Bank or Holding Company is acquired by
or for a person or business entity, either of which did not own, either
directly or indirectly, a Controlling Interest in the Bank or Holding
Company. The above shall not apply to stock purchased by any
tax-qualified employee stock ownership plan or other such type of benefit
plan sponsored by the Bank or any company affiliated with the Bank or the
Holding Company.
|
1.2
|
Construction
.
|
|
(a)
|
The
masculine gender when used herein shall be deemed to include the feminine
gender, and the singular may include the plural unless the context clearly
indicates to the contrary. The words "hereof", "herein,"
"hereunder", and other similar compounds of the word "here" shall mean and
refer to the entire Plan and not to any particular provision or
section. Whenever the words "Article" or "Section" are used in
this Plan, or a cross-reference to an "Article" or "Section" is made, the
Article or Section referred to shall be an Article or Section of this Plan
unless otherwise specified.
|
|
(b)
|
The
Plan is intended to be a plan that is not qualified within the meaning of
Code Section 401(a) and that “is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a select
group of management or highly compensated employees within the meaning of
ERISA Sections 201(2), 301(a)(3) and 401(a)(1). Except with
respect to Plan benefits not subject to Code Section 409A, the Plan shall
be administered and interpreted (i) to the extent possible in a manner
consistent with the intent described in the preceding sentence, and (ii)
in accordance with Code Section 409A and related Treasury
guidance.
|
1.3
|
Applicability of Code
Section 409A
. It is intended that if no part of a
Participant’s Retirement Benefit is earned or becomes vested after
December 31, 2004 and there is no material modification with respect to
such benefit which would cause it to become subject to Code Section 409A,
then neither this Plan restatement nor Code Section 409A shall apply to
such Participant’s Plan benefits, and the payment of such Participant’s
Plan benefits shall be governed by the terms of the Plan as in effect on
December 31, 2004.
|
2.1
|
Eligibility
. In
order to be eligible for participation in the Plan, an Employee must be
selected by the Committee in the year in which the Employee is eligible to
participate and in each succeeding year thereafter as hereinafter
provided. The Committee, in its sole and absolute discretion,
shall determine eligibility for participation in accordance with the
purposes of the Plan.
|
2.2
|
Participation
. After
being selected by the Committee to participate in this Plan, an Employee
shall, as a condition precedent to participation herein, complete and
return to the Committee a duly executed Plan Agreement agreeing to the
terms and conditions thereof. Such Plan Agreement shall be
completed and returned to the Committee at the time specified thereby and
comply with such further conditions as may be established and are
determined in the sole discretion of the
Committee.
|
3.1
|
Amount and Payment of
Death Benefit
. If a Participant dies before Retirement
and before his or her Retirement Benefit commences to be paid pursuant to
Section 4.1(b) and the Plan is in effect at that time, the Bank will pay
or cause to be paid a Death Benefit to such Participant's
Beneficiary. The said Death Benefit shall be (i) one hundred
percent (100%) of the Participant's Covered Salary as set forth in the
Plan Agreement paid monthly for the next twelve (12) months after such
death and (ii) seventy five percent (75%) of said Participant's Covered
Salary paid monthly for the next one hundred and eight (108) months or
until the Participant would have been age sixty-five (65), whichever is
later. Such payments shall commence effective the first day of
the month following the date of
death.
|
|
(a)
|
At
the time of the Participant's death prior to attaining his or her Normal
Retirement Date such Participant was an Employee and had not Retired, or
was Disabled or on authorized leave of absence, and his or her Retirement
Benefit has not commenced to be paid pursuant to Section
4.1(b);
|
|
(b)
|
The
Participant's Plan Agreement had been kept in force throughout the period
commencing on the date of such Plan Agreement and ending on the date of
his or her death;
|
|
(c)
|
The
Participant's death was due to causes other than suicide within two (2)
years of the date of his or her original Plan Agreement or within two (2)
years of the date of any amendment to his or her Plan Agreement or any
subsequent Plan Agreement resulting from additional benefits granted
because of an increase in the Participant's Covered Salary; but the
Participant's suicide shall relieve the Bank only of its obligation to pay
that portion of the Death Benefit that was granted within two (2) years
prior to the date of such suicide;
|
|
(d)
|
The
Participant's death is determined not to be from a bodily or mental cause
or causes, information about which was withheld, or knowingly concealed,
or falsely provided by the Participant when requested by the Bank to
furnish evidence of good health upon the Participant's enrolling in the
Plan or upon an application for an increase in benefits because of an
increase in Participant's Covered Salary;
and
|
|
(e)
|
Proof
of death in such form as determined acceptable by the Committee is
furnished.
|
3.2
|
Disability
.
|
|
(a)
|
If
a Participant becomes Disabled before attaining his or her Normal
Retirement Date and subsequently dies before Retirement and before his or
her Retirement Benefit commences to be paid pursuant to Section 4.1(b),
the Death Benefit provided in this Article III shall be
paid. If a Participant Retires after becoming Disabled or
attains his or her Normal Retirement Date, the Retirement Benefit provided
in Article IV shall be paid.
|
|
(b)
|
For
purposes hereof, either Disability and Disabled means unable to engage in
any substantial gainful activity (1) 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 not less
than twelve (12) months, or (2) 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 not less than twelve
(12) months, where the Participant is receiving income replacement
benefits for a period of not less than 3 months under an accident and
health plan covering employees of the Participant’s
Employer. For purposes of this Plan, a Participant shall be
deemed Disabled if determined to be totally disabled by the Social
Security Administration. A Participant shall also be deemed
Disabled if determined to be disabled in accordance with the applicable
disability insurance program of such Participant’s Employer, provided that
the definition of “disability” applied under such disability insurance
program complies with the requirements
hereof.
|
|
(1)
|
such
Disability was not either intentionally self-inflicted or caused by
illegal or criminal acts of the
Participant;
|
|
(2)
|
the
Participant was an Employee at the time he or she became Disabled (or was
then on an authorized leave of absence);
and
|
|
(3)
|
the
Participant's Plan Agreement has been kept in force until the time of such
Disability.
|
4.1
|
Payment at Normal
Retirement Date
.
|
|
(a)
|
Subject
to Section 4.1(b) and Section 4.7, if a Participant has remained an
Employee until his or her Normal Retirement Date and shall then Retire,
and if the Plan and his or her Plan Agreement have been kept in force, the
Bank shall pay or cause to be paid to such Participant, as a Retirement
Benefit (herein so called), the amount per month specified in his or her
Plan Agreement as a Retirement Benefit. Payment of such monthly
amount shall commence on the Participant's Normal Retirement Date and
shall continue for the life of the Participant. If such
Participant shall die before receiving one hundred and twenty (120)
monthly payments, the Retirement Benefit will be continued to the
Participant's Beneficiary as set forth in the Beneficiary Designation
until an aggregate of one hundred and twenty (120) monthly payments has
been paid to the Participant and his or her
Beneficiary.
|
|
(b)
|
This
Section 4.1(b) shall apply, effective January 1, 2008, notwithstanding any
other provisions of the Plan other than Section 4.7(b). In lieu
of payment pursuant to the other applicable provisions of this Article IV,
if (1) any portion of a Participant’s Retirement Benefit is earned or
becomes vested after December 31, 2004 and is thus subject to Code Section
409A, (2) such a Participant has remained an Employee until his or her
Normal Retirement Date (or, if later, until December 31, 2007), and (3)
the Plan and such Participant’s Plan Agreement have been kept in force
until such time, the Retirement Benefit of such a Participant shall
commence to be paid on the Participant's Normal Retirement Date (or if
later, on January 1, 2008) and shall continue for the life of the
Participant. The amount of such monthly payment shall be the
amount per month specified in the Participant's Plan Agreement on the
Participant's Normal Retirement Date (increased where applicable for
interest at the rate of four percent (4%), or such other rate as the
Committee may determine from time to time, per annum, compounded annually,
to the Participant's Normal Retirement Date (or if later, to January 1,
2008). If such Participant shall die before receiving one
hundred and twenty (120) monthly payments, the Retirement Benefit will be
continued to the Participant's Beneficiary as set forth in the Beneficiary
Designation until an aggregate of one hundred and twenty (120) monthly
payments has been paid to the Participant and his or her
Beneficiary. Notwithstanding any other provisions of the Plan,
in the event a Participant commences to receive his or her Retirement
Benefit pursuant to this Section 4.1(b), there shall be no further accrual
of, or any increase to, the Participant’s Retirement Benefit under the
Plan after the Participant’s Normal Retirement Date (or, if later,
December 31, 2007) unless the Committee provides for the same in a
Participant’s Plan Agreement (in which case any additional accrual for a
year shall commence to be paid on the next anniversary date of the
Participant’s Normal Retirement Date and shall be payable for the
Participant’s life, but there shall be no extension of the one hundred and
twenty (120) monthly payment period for Retirement
Benefits).
|
4.2
|
Early
Retirement
.
|
|
(a)
|
Subject
to Section 4.7, if a Participant has remained an Employee until his or her
Early Retirement Date and shall then Retire, and if the Plan and his or
her Plan Agreement have been kept in force, the Bank shall pay or cause to
be paid to such Participant an Early Retirement Benefit commencing as of
the Participant's Early Retirement Date. In such event, the
Participant's monthly Early Retirement Benefit shall be the Retirement
Benefit set forth in his or her Plan Agreement Actuarially Reduced to the
Participant's Early Retirement Date. The said reduced monthly
amount, payable for life shall be the only benefit to which such
Participant is entitled. If Participant shall die before
receiving one hundred and twenty (120) installments after commencement of
the Early Retirement Benefit, said amount will be continued to
Participant's Beneficiary as set forth in the Beneficiary Designation
until a total of one hundred and twenty (120) installments have been paid
to the Participant and his or her
Beneficiary.
|
|
(b)
|
A
Participant, in connection with his or her commencement of participation
in the Plan (or, if later, by December 31, 2008) and consistent with the
payment election rules of Code Section 409A (including that the election
does not cause amounts otherwise to be paid in the calendar year of
election to be deferred to a later calendar year and does not cause
amounts otherwise to be paid later than the calendar year of election to
be paid in the calendar year of election), may irrevocably elect in his or
her Plan Agreement (or in a supplement thereto) to decline to receive his
or her Retirement Benefit as an Early Retirement Benefit, in which event
his or her Retirement Benefit shall be paid at his or her Normal
Retirement Date pursuant to Section 4.1 (subject to acceleration in the
event of the Participant’s death after Retiring on Early Retirement) and
shall not commence to the Participant upon or in connection with his or
her Early Retirement.
|
4.3
|
Post Retirement Death
Benefit
. If a Participant dies after Retirement or
commencement of his or her Retirement Benefit pursuant to Section 4.1(b),
but before the applicable Retirement Benefit is paid in full, the unpaid
Retirement Benefit payments to which such Participant is entitled shall
continue and be paid to that Participant's Beneficiary. Such
payments shall be made in accordance with the payment schedule to that
Participant pursuant to Section 4.1 or 4.2 of the
Plan.
|
4.4
|
Exclusivity of Post
Retirement Death Benefit
. No Death Benefit as defined in
Article III shall be paid to the Beneficiary of a Participant who dies
after Retirement or commencement of his or her Retirement Benefit pursuant
to Section 4.1(b).
|
4.5
|
Accrual of Retirement
Benefit
. A Participant who ceases to be an Employee
before completion of one (1) full year of participation in the Plan,
except as a result of death, Retirement, or Disability, or as a result of
Just Cause at any time shall not be entitled to any benefits hereunder and
the Bank shall have no obligation hereunder to such
Participant.
|
4.6
|
Deferred Termination
Benefit
. A Participant who ceases to be an Employee
after the completion of one (1) full year of participation in the Plan and
for reasons other than Retirement or Just Cause shall receive a portion of
his or her monthly Retirement Benefit upon the earlier of (i) the
Participant's death or (ii) attainment of his or her Normal Retirement
Date. Said portion shall be the monthly amount of the
Retirement Benefit set forth in the Participant's Plan Agreement
multiplied by a fraction, not to exceed one (1), the numerator of which is
the number of whole years said Employee was a Participant in the Plan and
the denominator of which is ten (10). The resulting reduced
monthly amount shall be the only benefit to which such Participant is
entitled. Subject to Section 4.7, the reduced monthly amount
will be payable for life, if Participant so survives, commencing at the
Participant's Normal Retirement Date. If such Participant shall
die before receiving one hundred and twenty (120) monthly payments, the
reduced amount will be continued to the Participant's Beneficiary as set
forth in the Beneficiary Designation until an aggregate of one hundred and
twenty (120) monthly payments has been paid to the Participant and his or
her Beneficiary.
|
4.7
|
Deferral of Payment
Commencement to Comply with Code Section 409A or to Avoid
Non-Deductibility under Code Section
162(m)
.
|
|
(a)
|
Notwithstanding
any other provisions of the Plan, if a Participant becomes entitled to be
paid his or her Retirement Benefit which is considered to be nonqualified
deferred compensation for purposes of, and which is subject to, Code
Section 409A (taking into account all applicable exclusions and exemptions
thereunder) by reason of his or her Retirement or other Separation from
Service (which term does not include separation by reason of death or
Disability), the following shall apply: (1) such Participant
shall not commence to be paid his or her Retirement Benefit until he or
she is considered to have a Separation from Service; and (2) where payment
commences on account of the Participant’s Separation from Service,
commencement of payment of his or her Retirement Benefit shall be delayed
until six (6) months after such Separation from Service or, if earlier,
the Participant’s death (the “409A Deferral Period”). In the
event payments are delayed by clause (2) of the preceding sentence, the
payments otherwise due to be made in installments or periodically during
the 409A Deferral Period shall be accumulated and paid in a lump sum as
soon as the 409A Deferral Period ends (together with interest thereon
based on the interest rate used to determine an Actuarially Reduced
payment as of the date of his or her Separation from Service), and the
balance of the payments shall thereafter be made as otherwise
scheduled.
|
|
(b)
|
If
the Bank’s deduction with respect to any distribution from this Plan to a
Participant would be limited or eliminated by application of Code Section
162(m), then to the extent permitted by Treas. Reg. §1.409A-2(b)(7)(i),
payment shall be delayed as deemed necessary to ensure that the entire
amount of any distribution from this Plan to the Participant is
deductible. Any amounts for which distribution is delayed
pursuant to this provision shall continue to be credited with interest
thereon based on the interest rate used to determine an Actuarially
Reduced payment. The delayed amounts (and any interest credited
thereon) shall be distributed to the Participant (or his or her
Beneficiary in the event of the Participant’s death) at the earliest date
the Bank reasonably anticipates that the deduction of the payment of the
amount will not be limited or eliminated by application of Code Section
162(m). In the event that such date is determined to be after a
Participant’s Separation from Service, then the payment to the Participant
will be considered made on account of a Separation from Service and must
comply with the six (6) month delay in payment required by Section 4.7(a)
following such Participant’s Separation from
Service.
|
6.1
|
Benefits Payable from
General Assets
. Amounts payable hereunder shall be paid
exclusively from the general assets of the Bank, and no person entitled to
payment hereunder shall have any claim, right, security interest, or other
interest in any fund, trust, account, or other asset of the Bank that may
be looked to for such payment. The Bank's liability for the
payment of benefits hereunder shall be evidenced only by this Plan and
each Plan Agreement entered into between the Bank and a
Participant.
|
6.2
|
Investments to
Facilitate Payment of Benefits
. Although the Bank is not
obligated to invest in any specific asset or fund in order to provide the
means for the payment of any liabilities under this Plan, the Bank may
elect to do so and, in such event, no Participant shall have any interest
whatever in such asset or fund. As a condition precedent to the
Bank's obligation to provide any benefits, including incremental increases
in benefits, under this Plan, the Participant shall, if so requested by
the Bank, provide evidence of insurability at standard and other rates, in
such amounts, and with such insurance carrier or carriers as the Bank may
require, including the results and reports of previous Bank and other
insurance carrier physical examinations, taking such additional physical
examinations as the Bank may request, and taking any other action that the
Bank may request, and shall consent to the Bank’s acquisition of insurance
on his or her life. If a Participant is requested to and does
not or cannot provide evidence of insurability as specified in the
immediately preceding sentence, then the Bank shall have no further
obligation to such Participant under this Plan, and such Participant's
Plan Agreement shall terminate, except as to benefits previously
granted. Notwithstanding the foregoing, if a Participant cannot
provide evidence of insurability at standard rates or for the amounts
initially contemplated in connection with his or her participation in the
Plan, the Bank may, at its discretion, permit the Participant to
participate herein for such benefits and upon such deferral of his or her
compensation as the Bank may, in its sole discretion, deem appropriate in
a manner which is not violative of Code Section 409A and is set out in his
or her Plan Agreement.
|
6.3
|
Bank
Obligation
. The Bank shall have no obligation of any
nature whatsoever to a Participant under this Plan or a Participant's Plan
Agreement, except otherwise expressly provided herein and in such Plan
Agreement.
|
6.4
|
Withholding of
Information, Etc
. If, in connection with a Participant's
enrolling in or applying for incremental benefit increases under the Plan,
the Bank requests the Participant to furnish evidence of insurability, the
Participant dies, and it is determined that the Participant withheld,
knowingly concealed, or knowingly provided false information about the
bodily or mental condition or conditions that caused the Participant's
death, the Bank shall have no obligation to provide the benefits
contracted for on the basis of such withholding, concealment, or false
information.
|
8.1
|
Termination of
Participation - General
. A Participant reserves the
right to terminate his or her participation in this Plan and his or her
Plan Agreement at his or her election at any time by giving the Committee
written notice of such termination not less than thirty (30) days prior to
an anniversary date of the date of execution of his or her Plan
Agreement. A Participant's termination shall be effective as
soon as administratively convenient after such anniversary
date. If a Participant terminates his or her participation in
the Plan, such participation termination must not be violative of Code
Section 409A and, in the case of a Participant who has agreed to a
deferral of compensation pursuant to the Plan, must be effected as of the
beginning of a calendar year, or as of a specified date is a calendar
year, following the calendar year in which the Participant delivers
written notice of his or her participation termination to the
Committee.
|
8.2
|
Rights After
Termination of Participation
. Participants who elect to
terminate participation in the Plan after one (1) full year of
participation but before eligibility for Retirement will be entitled to
the same benefits as a Participant who ceases to be an Employee as
described in Section 4.6. Such Participants will not be
entitled to a Death Benefit under Article
III.
|
9.1
|
Termination Amendment,
Etc
. The Bank reserves the right to terminate, amend,
modify or supplement this Plan, wholly or partially, and from time to
time, at any time. The Bank likewise reserves the right to
terminate, amend, modify, or supplement any Plan Agreement, wholly or
partially, from time to time. Such right to terminate, amend,
modify, or supplement this Plan or any Plan Agreement shall be exercised
for the Bank by the Committee; provided, however,
that:
|
|
(a)
|
Except
as deemed appropriate to comply with Code Section 409A, no action to
terminate this Plan or a Plan Agreement shall be taken except upon written
notice to each Participant to be affected thereby, which notice shall be
given not less than thirty (30) days prior to such action;
and
|
|
(b)
|
The
Committee shall take no action to terminate this Plan or a Plan Agreement
with respect to a Participant or his or her Beneficiary after the payment
of any benefit has commenced in accordance with Article III or Article IV
but has not been completed.
|
9.2
|
Rights and Obligations
Upon Termination
. Upon the termination of this Plan or
any Plan Agreements, by either the Committee or a Participant in
accordance with the provisions for such termination, neither this Plan nor
the Plan Agreement shall be of any further force and effect, and no party
shall have any further obligation under either this Plan or any Plan
Agreement so terminated except as may be provided for in Section 4.6,
Section 9.3, or the provisions of this Article
IX.
|
9.3
|
Rights and Obligations
Upon Termination as Result of "Change in Control"
. In
the event the Bank or Holding Company should undergo a Change in Control
to another corporation, firm or person and within three (3) years of such
Change in Control such corporation, firm or person takes action to
terminate this Plan or a Participant in the Plan or if the Employee
resigns for Good Reason, a Participant who is an Employee at such time
will, nevertheless, be entitled to a portion of his or her monthly
Retirement Benefit upon the earlier of (i) the Participant's death, (ii)
Early Retirement Date or (iii) attainment of his or her Normal Retirement
Date. Said portion shall be the monthly amount of the
Retirement Benefit set forth in the Participant's Plan Agreement
multiplied by a fraction, not to exceed one (1), the numerator of which is
the number of whole years said Employee was a Participant in the Plan
plus, in the case of a Participant who has not attained his or her Normal
Retirement Date (or, if later, December 31, 2007), five (5) additional
years and the denominator of which is ten (10). The resulting
reduced monthly amount shall be the only benefit to which such Participant
is entitled. The reduced monthly amount will be payable for
life, if Participant so survives, at the Participant's Normal Retirement
Date; provided, however, that if the Participant retires on Early
Retirement, the Participant's monthly amount shall be the monthly amount
determined above Actuarially Reduced to the Participant's Early Retirement
Date and, subject to Section 4.7, shall commence on the Participant’s
Early Retirement Date. If such Participant shall die before
receiving one hundred and twenty (120) monthly payments, the reduced
amount will be continued to the Participant's Beneficiary as set forth in
the Beneficiary Designation until an aggregate of one hundred and twenty
(120) monthly payments has been paid to the Participant and his or her
Beneficiary. If Participant dies before his or her Retirement
on Early Retirement or attainment of his or her Normal Retirement Date,
the reduced monthly amount will be paid to Participant's Beneficiary as
set forth in Participant's Beneficiary Designation for one hundred and
twenty (120) months. Such payments shall commence effective the
first day of the month following the date of
death.
|
9.4
|
Revocation
. In
the event Participant is discharged for Just Cause at any time, his or her
Plan Agreement shall be terminated and considered null and void with
neither the Participant nor Participant's Beneficiary having any claim or
right against Bank under this Plan or the Participant’s Plan Agreement
thereafter.
|
12.1
|
Appointment of
Committee
. The general administration of this Plan, and
any Plan Agreements executed hereunder, as well as construction and
interpretation thereof, shall be vested in the Committee, the number and
members of which shall be designated and appointed from time to time by,
and shall serve at the pleasure of, the Board of Directors. Any
such member of the Committee may resign by notice in writing filed with
the secretary of the Committee. Vacancies shall be filled
promptly by the Board of Directors but any vacancies remaining unfilled
for ninety days may be filled by a majority vote of the remaining members
of the Committee. Each person appointed a member of the
Committee shall signify his or her acceptance by filing a written
acceptance with the secretary of the
Committee.
|
12.2
|
Committee
Officials
. The Board of Directors shall designate one of
the members of the Committee as chairman and shall appoint a secretary who
need not be a member of the Committee. The secretary shall keep
minutes of the Committee's proceedings and all data, records and documents
relating to the Committee's administration of this Plan and any Plan
Agreements executed hereunder. The Committee may appoint from
its number such subcommittees with such powers as the Committee shall
determine and may authorize one or more of its members or any agent to
execute or deliver any instrument or make any payment on behalf of the
Committee.
|
12.3
|
Committee
Action
. All resolutions or other actions taken by the
Committee shall be by the vote of a majority of those members present at a
meeting at which a majority of the members are present, or in writing by
all the members at the time in office if they act without a
meeting.
|
12.4
|
Committee Rules and
Powers - General
. Subject to the provisions of this
Plan, the Committee shall from time to time establish rules, forms, and
procedures for the administration of this Plan, including Plan
Agreements. The Committee shall have the exclusive right to
determine, among other matters, (i) Disability with respect to a
Participant and (ii) the degree thereof, either or both determinations to
be made on the basis of such medical and/or other evidence that the
Committee, in its sole and absolute discretion, may
require. Such decisions, actions, and records of the Committee
shall be conclusive and binding upon the Bank and all persons having or
claiming to have any right or interest in or under this
Plan.
|
12.5
|
Reliance on
Certificate, Etc
. The members of the Committee and the
officers and directors of the Bank shall be entitled to rely on all
certificates and reports made by any duly appointed accountants, and on
all opinions given by any duly appointed legal counsel. Such
legal counsel may be counsel for the
Bank.
|
12.6
|
Liability of
Committee
. No member of the Committee shall be liable
for any act or omission of any other member of the Committee, or for any
act or omission on his or her own part, excepting only his or her own
willful misconduct. The Bank shall indemnify and save harmless
each member of the Committee against any and all expenses and liabilities
arising out of his or her membership on the Committee, excepting only
expenses and liabilities arising out of his or her own willful
misconduct. Expenses against which a member of the Committee
shall be indemnified hereunder shall include, without limitation, the
amount of any settlement or judgment, costs, counsel fees, and related
charges reasonably incurred in connection with a claim asserted, or a
proceeding brought, or settlement thereof. The foregoing right
of indemnification shall be in addition to any other rights to which any
such member may be entitled as a matter of
law.
|
12.7
|
Determination of
Benefits
. In addition to the powers hereinabove
specified, the Committee shall have the power to compute and certify,
under this Plan and any Plan Agreement, the amount and kind of benefits
from time to time payable to Participants and their Beneficiaries, and to
authorize all disbursements for such
purposes.
|
12.8
|
Information to
Committee
. To enable the Committee to perform its
functions, the Bank shall supply full and timely information to the
Committee on all matters relating to the compensation of all Participants,
their retirement, death or other cause for termination of employment, and
such other pertinent facts as the Committee may
require.
|
12.9
|
Manner and time of
Payment of Benefits
. The Committee shall have the power,
in its sole and absolute discretion, to change the manner and time of
payment of benefits to be made to a Participant or his or her Beneficiary
from that set forth in the Participant's Plan Agreement if requested to do
so by such Participant or
Beneficiary.
|
13.1
|
Named
Fiduciary
. The Named Fiduciary of the Plan for purposes
of the claims procedure under this Plan is the Chief Financial Officer;
provided, however, that if the claim relates to a Plan benefit of the
Chief Financial Officer, the Named Fiduciary shall be the person or
committee designated by the Bank.
|
13.2
|
Right to Change Named
Fiduciary
. The Bank shall have the right to change the
Named Fiduciary created under this Plan. The Bank shall also
have the right to change the address and telephone number of the Named
Fiduciary. The Bank shall give the Participant written notice
of any change of the Named Fiduciary, or any change in the address and
telephone number of the Named
Fiduciary.
|
13.3
|
Procedure for
Claims
. Benefits shall be paid in accordance with the
provisions of this Plan. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being referred to
below as a “Claimant”) may deliver to the Named Fiduciary a written claim
for a determination with respect to the amounts distributable to such
Claimant from the Plan. The written claim shall be mailed or
delivered to the Named Fiduciary. If such a claim relates to
the contents of a notice received by the Claimant, the claim must be made
within sixty (60) days after such notice was received by the
Claimant. All other claims must be made within one hundred and
eighty (180) days of the date on which the event that caused the claim to
arise occurred. The claim must state with particularity the
determination desired by the
Claimant.
|
13.4
|
Notification of Denial
of Claim
. The Named Fiduciary shall consider a
Claimant's claim within a reasonable time, but no later than ninety (90)
days after receiving the claim. If the Named Fiduciary
determines that special circumstances require an extension of time for
processing the claim, written notice of the extension shall be furnished
to the Claimant prior to the termination of the initial ninety (90) day
period. In no event shall such extension exceed a period of
ninety (90) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Named Fiduciary expects to
render the benefit determination. The Named Fiduciary shall
notify the Claimant in writing:
|
|
(a)
|
that
the Claimant's requested determination has been made, and that the claim
has been allowed in full; or
|
|
(b)
|
that
the Named Fiduciary has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must set
forth in a manner calculated to be understood by the
Claimant:
|
|
(1)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
|
(2)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
|
(3)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;
|
|
(4)
|
an
explanation of the claim review procedure set forth in Section 13.5 below;
and
|
|
(5)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
|
13.5
|
Review of a Denied
Claim
. On or before sixty (60) days after receiving a
notice from the Named Fiduciary that a claim has been denied, in whole or
in part, a Claimant (or the Claimant's duly authorized representative) may
file with the Named Fiduciary a written request for a review of the denial
of the claim. The Claimant (or the Claimant's duly authorized
representative):
|
|
(a)
|
may,
upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claim for
benefits;
|
|
(b)
|
may
submit written comments or other documents;
and/or
|
|
(c)
|
may
request a hearing, which the Named Fiduciary, in its sole discretion, may
grant.
|
13.6
|
Decision on
Review
. The Named Fiduciary shall render its decision on
review promptly, and no later than sixty (60) days after the Named
Fiduciary receives the Claimant’s written request for a review of the
denial of the claim. If the Named Fiduciary determines that
special circumstances require an extension of time for processing the
claim, written notice of the extension shall be furnished to the Claimant
prior to the termination of the initial sixty (60) day
period. In no event shall such extension exceed a period of
sixty (60) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Named Fiduciary expects to
render the benefit determination. In rendering its decision,
the Named Fiduciary shall take into account all comments, documents,
records and other information submitted by the Claimant relating to the
claim, without regard to whether such information was submitted or
considered in the initial benefit determination. The decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
|
|
(a)
|
specific
reasons for the decision;
|
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;
|
|
(c)
|
a
statement that the Claimant is entitled to receive, upon request and free
of charge, reasonable access to and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to
the Claimant’s claim for benefits;
and
|
|
(d)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a).
|
13.7
|
Legal
Action
. A Claimant's compliance with the foregoing
provisions of this Article XIII is a mandatory prerequisite to a
Claimant's right to commence any legal action with respect to any claim
for benefits under this Plan.
|
15.1
|
Execution of Receipts
and Releases
. Any payment to any Participant, a
Participant's legal representative, or Beneficiary in accordance with the
provisions of this Plan or Plan Agreement executed hereunder shall, to the
extent thereof, be in full satisfaction of all claims hereunder against
the Bank. The Bank may require such Participant, legal
representative, or Beneficiary, as a condition precedent to such payment,
to execute a receipt and release therefore in such form as it may
determine.
|
15.2
|
No Guarantee of
Interests
. Neither the Committee nor any of its members
guarantees the payment of any amounts which may be or become due to any
person or entity under this Plan or any Plan Agreement executed
hereunder. The liability of the Bank to make any payment under
this Plan or any Plan Agreement executed hereunder is limited to the then
available assets of the Bank.
|
15.3
|
Bank
Records
. Records of the Bank as to a Participant's
employment, termination of employment and the reason therefor authorized
leaves of absence, and compensation shall be conclusive on all persons and
entities, unless determined to be
incorrect.
|
15.4
|
Evidence
. Evidence
required of anyone under this Plan and any Plan Agreement executed
hereunder may be by certificate, affidavit, document, or other information
which the person or entity acting on it considers pertinent and reliable,
and signed, made, or presented by the proper party or
parties.
|
15.5
|
Notice
. Any
notice which shall be or may be given under this Plan or a Plan Agreement
executed hereunder shall be in writing and shall be mailed by United
States mail, postage prepaid. If notice is to be given to the
Bank, such notice shall be addressed to the Bank
at:
|
15.6
|
Change of
Address
. Any party may, from time to time, change the
address to which notices shall be mailed by giving written notice of such
new address.
|
15.7
|
Effect of
Provisions
. The provisions of this Plan and of any Plan
Agreement executed hereunder shall be binding upon the Bank and its
successors and assigns, and upon a Participant, his or her Beneficiary,
assigns, heirs, executors, and
administrators.
|
15.8
|
Headings
. The
titles and headings of Articles and Sections are included for convenience
of reference only and are not to be considered in the construction of the
provisions hereof or any Plan Agreement executed
hereunder.
|
15.9
|
Governing
Law
. All questions arising with respect to this Plan and
any Plan Agreement executed hereunder shall be determined by reference to
the laws of the State of Mississippi, as in effect at the time of their
adoption and execution,
respectively.
|
|
___
|
To
participate in the Plan.
|
|
___
|
Not
to participate in the Plan.
|
1.
|
Participant's Covered
Salary:
$
per month.
|
2.
|
Death Benefit (Article III of
Plan):
|
3.
|
Retirement Benefit (Article IV
of Plan):
|
|
(a)
|
Retirement
at Normal Retirement Date: $
per
month for life. If Participant shall die prior to receiving one
hundred and twenty (120) monthly payments, said amount shall be
continued to Participant's Beneficiary in accordance with Beneficiary
Designation until the balance of the one hundred and twenty (120) monthly
payments has been paid.
|
|
(b)
|
Retirement
before Normal Retirement Date: Amounts to be determined and
paid as specified by Section 4.2(a) of the Plan
unless
an
election is made below to be paid at Participant’s Normal Retirement
Date:
|
|
___
|
I
elect that, if I retire on Early Retirement under the Plan, my Retirement
Benefit will commence at my Normal Retirement Date (rather than 6 months
after my Early Retirement Date as provided in Section 4.2(a) of the Plan)
or, if earlier, after my death as provided in Section 4.2(b) of the
Plan.
|
|
(c)
|
Termination
Benefit: Amounts to be determined and paid as specified by
Section 4.6 and/or Section 9.3 of the
Plan.
|
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
|
||
By
|
||
Title
|
||
PARTICIPANT
|
||
(Signature)
|
||
(Type
or print name)
|
||
(Address
of Participant)
|
1.
|
Participant:
|
.
|
2.
|
Scope:
This
Beneficiary Designation applies to all benefits of the Plan to which the
above-named Participant has the right to name the
Beneficiary.
|
3.
|
COUNSEL:
THE
DESIGNATION OF A BENEFICIARY OR BENEFICIARIES IN ITEMS 4, 5, AND 6 BELOW
MAY HAVE SIGNIFICANT ESTATE AND GIFT TAX CONSEQUENCES TO THE
PARTICIPANT. ACCORDINGLY, THE PARTICIPANT SHOULD SEEK THE
ADVICE OF PROFESSIONAL COUNSEL WHO IS FAMILIAR WITH THE ESTATE AND GIFT
TAX ASPECTS OF NONQUALIFIED RETIREMENT AND SALARY CONTINUATION PLANS
BEFORE COMPLETING THIS FORM.
|
4.
|
Identification
of Beneficiaries:
|
A.
|
Primary
Beneficiary:
|
|
|
B.
|
Secondary
Beneficiary:
|
|
|
5.
|
Methods
of Payment (Check One):
|
___
|
Alternative
1
. Beneficiary shall mean the Primary Beneficiary if
such Primary Beneficiary survives Participant, and shall mean the Primary
Beneficiary's estate if such Primary Beneficiary survives Participant but
thereafter dies. The term Beneficiary shall mean the Secondary
Beneficiary if the Primary Beneficiary fails to survive Participant, and
shall mean the Secondary Beneficiary's estate when the Secondary
Beneficiary thereafter dies. If both the Primary and Secondary
Beneficiaries fail to survive Participant, the term Beneficiary shall mean
the Participant's estate.
|
___
|
Alternative
2
. Beneficiary shall mean the Primary Beneficiary if
such Primary Beneficiary survives Participant, and shall mean the
Secondary Beneficiary if either the Primary Beneficiary fails to survive
Participant or the Primary Beneficiary survives Participant but thereafter
dies. If both the Primary and Secondary Beneficiaries fail to
survive Participant, the term Beneficiary shall mean the Participant's
estate.
|
___
|
Alternative
3
.
|
|
6.
|
Survivorship
(Check One):
|
___
|
Alternative
1
. For purposes of this Beneficiary Designation, no
person shall be deemed to have survived the Participant if that person
dies within thirty (30) days of the Participant's
death.
|
___
|
Alternative
2
. If the Participant and the Participant's spouse die
under circumstances such that there is insufficient evidence to determine
the order of their deaths or if the Participant's spouse outlives the
Participant for any time whatsoever, the Participant's spouse shall be
deemed to have survived the Participant. For all other purposes
of this Beneficiary Designation, no person shall be deemed to have
survived the Participant if that person dies within thirty (30) days of
the Participant's death.
|
7.
|
Duration:
This
Beneficiary Designation is effective until the Participant files another
such Designation with the Bank. Any previous Beneficiary
Designations are hereby revoked.
|
8.
|
Execution:
|
9.
|
Approval:
This
Beneficiary Designation is acknowledged and approved this _____ day
of __________, 20_____ and shall be effective as of the date executed by
the Participant above.
|
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
|
||
By
|
||
Title
|
1.1
|
“Account
Balance” shall mean, with respect to a Participant, an entry on the
records of the Employer equal to the sum of the Participant’s Annual
Accounts. The Account Balance shall be a bookkeeping entry only
and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this
Plan.
|
1.2
|
“Annual
Account” shall mean, with respect to a Participant, an entry on the
records of the Employer equal to (a) the sum of the Participant’s Annual
Deferral Amount for any one Plan Year, plus (b) amounts credited or
debited to such amounts pursuant to this Plan, less (c) all distributions
made to the Participant or his or her Beneficiary pursuant to this Plan
that relate to the Annual Account for such Plan Year. The
Annual Account shall be a bookkeeping entry only and shall be utilized
solely as a device for the measurement and determination of the amounts to
be paid to a Participant, or his or her designated Beneficiary, pursuant
to this Plan.
|
1.3
|
“Annual
Deferral Amount” shall mean that portion of a Participant's Base Salary,
Bonus, Commissions and Director Fees that a Participant defers in
accordance with Article 3 for any one Plan Year, without regard to whether
such amounts are withheld and credited during such Plan
Year.
|
1.4
|
“Annual
Installment Method” shall mean the method used to determine the amount of
each payment due to a Participant who has elected to receive a benefit
over a period of years in accordance with the applicable provisions of the
Plan. The amount of each annual payment due to the Participant
shall be calculated by multiplying the balance of the Participant’s
benefit by a fraction, the numerator of which is one and the denominator
of which is the remaining number of annual payments due to the
Participant. The amount of the first annual payment shall be
calculated as of the close of business on or around
the Participant’s
Benefit Distribution Date,
and the amount of
each subsequent annual payment shall be calculated on or around each
anniversary of such Benefit Distribution Date. For purposes of
this Plan, the right to receive a benefit payment in annual installments
shall be treated as the entitlement to a single
payment.
|
1.5
|
“Base
Salary” shall mean the annual cash compensation relating to services
performed during any calendar year, excluding distributions from
nonqualified deferred compensation plans, bonuses, commissions, overtime,
fringe benefits, stock options, relocation expenses, incentive payments,
non-monetary awards, director fees and other fees, and automobile and
other allowances paid to a Participant for employment services rendered
(whether or not such allowances are included in the Employee’s gross
income). Base Salary shall be calculated before reduction for
compensation voluntarily deferred or contributed by the Participant
pursuant to all qualified or nonqualified plans of any Employer and shall
be calculated to include amounts not otherwise included in the
Participant's gross income under Code Sections 125, 402(e)(3), 402(h), or
403(b) pursuant to plans established by any Employer; provided, however,
that all such amounts will be included in compensation only to the extent
that had there been no such plan, the amount would have been payable in
cash to the Employee.
|
1.6
|
“Beneficiary”
shall mean one or more persons, trusts, estates or other entities,
designated in accordance with Article 10, that are entitled to receive
benefits under this Plan upon the death of a
Participant.
|
1.7
|
“Beneficiary
Designation Form” shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to designate one or more
Beneficiaries.
|
1.8
|
“Benefit
Distribution Date” shall mean the date upon which all or an objectively
determinable portion of a Participant’s vested benefits will become
eligible for distribution. Except as otherwise provided in the
Plan, a Participant’s Benefit Distribution Date shall be determined based
on the earliest to occur of an event or scheduled date set forth in
Articles 4 through 9, as
applicable.
|
1.9
|
“Board”
shall mean the board of directors of the
Company.
|
1.10
|
“Bonus”
shall mean any compensation, in addition to Base Salary and Commissions,
earned by a Participant under any Employer's annual bonus and cash
incentive plans.
|
1.11
|
“Change in Control” shall mean
the first to occur of any of a Buyout, Merger, Dissolution, or Substantial
Change in Ownership.
The following terms
have the following meanings for this
purpose:
|
|
(a)
|
“Bank”
shall mean Trustmark National Bank.
|
|
(b)
|
“Buyout”
shall mean a transaction or series of related transactions by which the
Company or Bank is sold, either through the sale of a Controlling Interest
in the Company’s or Bank’s voting stock or through the sale of
substantially all of the Company’s or Bank’s assets, to a party not having
a Controlling Interest in the Company’s or Bank’s voting
stock.
|
|
(c)
|
“Controlling
Interest” shall mean ownership, either directly or indirectly, of more
than 20% of the entity’s voting
stock.
|
|
(d)
|
“Dissolution”
shall mean the dissolution or liquidation of the Company or
Bank.
|
|
(e)
|
“Merger”
shall mean a transaction or a series of transactions wherein the Company
or Bank is combined with another business entity, and after which the
persons or entities who had owned, either directly or indirectly, a
Controlling Interest in the Company’s or Bank’s voting stock own less than
a Controlling Interest in the voting stock of the combined
entity.
|
|
(f)
|
“Substantial
Change in Ownership” shall mean a transaction or series of transactions in
which a Controlling Interest in the Company or Bank is acquired by or for
a person or business entity, either of which did not own, either directly
or indirectly, a Controlling Interest in the Company or
Bank. The above shall not apply to stock purchased by any
tax-qualified employee stock ownership plan or such type of benefit plan
sponsored by the Company or any of its
subsidiaries.
|
1.12
|
“Code”
shall mean the Internal Revenue Code of 1986, as it may be amended from
time to time.
|
1.13
|
“Commissions”
shall mean the cash commissions earned by a Participant during a Plan
Year, as determined in accordance with Code Section 409A and related
Treasury Regulations.
|
1.14
|
“Committee”
shall mean the committee described in Article
13.
|
1.15
|
“Company”
shall mean Trustmark Corporation, a Mississippi corporation, and any
successor to all or substantially all of the Company’s assets or
business.
|
1.16
|
“Director”
shall mean any member of the board of directors of any
Employer.
|
1.17
|
“Director
Fees” shall mean the annual fees earned by a Director from any Employer,
including retainer fees and meetings fees, as compensation for serving on
the board of directors.
|
1.18
|
“Disability”
or “Disabled” shall mean that a Participant is either (a) 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 not less
than 12 months, or (b) 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 not less than 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
Participant’s Employer. For purposes of this Plan, a
Participant shall be deemed Disabled if determined to be totally disabled
by the Social Security Administration. A Participant shall also
be deemed Disabled if determined to be disabled in accordance with the
applicable disability insurance program of such Participant’s Employer,
provided that the definition of “disability” applied under such disability
insurance program complies with the requirements of this
Section.
|
1.19
|
“Election
Form” shall mean the form, which may be in electronic format, established
from time to time by the Committee that a Participant completes, signs and
returns to the Committee to make an election under the
Plan.
|
1.20
|
“Employee”
shall mean a person who is an employee of an
Employer.
|
1.21
|
“Employer(s)”
shall be defined as follows:
|
|
(a)
|
Except
as otherwise provided in part (b) of this Section, the term “Employer”
shall mean the Company and/or any of its subsidiaries (now in existence or
hereafter formed or acquired) that have been selected by the Board to
participate in the Plan and have adopted the Plan as a
sponsor.
|
|
(b)
|
For
the purpose of determining whether a Participant has experienced a
Separation from Service, the term “Employer” shall
mean:
|
|
(i)
|
The
entity for which the Participant performs services and with respect to
which the legally binding right to compensation deferred or contributed
under this Plan arises; and
|
|
(ii)
|
All
other entities with which the entity described above would be aggregated
and treated as a single employer under Code Section 414(b) (controlled
group of corporations) and Code Section 414(c) (a group of trades or
businesses, whether or not incorporated, under common control), as
applicable. In order to identify the group of entities
described in the preceding sentence, the Committee shall use an ownership
threshold of 80% when applying, the applicable provisions of (A) Code
Section 1563 for determining a controlled group of corporations under Code
Section 414(b), and (B) Treas. Reg. §1.414(c)-2 for determining the trades
or businesses that are under common control under Code Section
414(c).
|
1.22
|
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
|
1.23
|
“Participant”
shall mean any Employee or Director (a) who is selected to participate in
the Plan, (b) whose executed Plan Agreement, Election Form and Beneficiary
Designation Form are accepted by the Committee, and (c) whose Plan
Agreement has not terminated.
|
1.24
|
“Performance-Based
Compensation” shall mean compensation the entitlement to or amount of
which is contingent on the satisfaction of pre-established organizational
or individual performance criteria relating to a performance period of at
least 12 consecutive months, as determined by the Committee in accordance
with Treas. Reg. §1.409A-1(e). The outcome under the applicable
pre-established organizational or individual performance criteria must be
substantially uncertain at the time of establishment, and the criteria
must be established no later than 90 days after the beginning of the
period of service to which the incentive compensation and performance
relate.
|
1.25
|
“Plan”
shall mean the Trustmark Corporation Deferred Compensation Plan, which
shall be evidenced by this instrument, as it may be amended from time to
time, and by any other documents that together with this instrument define
a Participant’s rights to amounts credited to his or her Account
Balance.
|
1.26
|
“Plan
Agreement” shall mean a written agreement in the form prescribed by or
acceptable to the Committee that evidences a Participant’s agreement to
the terms of the Plan and which may establish additional terms or
conditions of Plan participation for a Participant. Unless
otherwise determined by the Committee, the most recent Plan Agreement
accepted with respect to a Participant shall supersede any prior Plan
Agreements for such Participant. Plan Agreements may vary among
Participants and may provide additional benefits not set forth in the Plan
or limit the benefits otherwise provided under the
Plan.
|
1.27
|
“Plan
Year” shall
mean a period
beginning on January 1 of each calendar year and continuing through
December 31 of such calendar year.
|
1.28
|
“Retirement,”
“Retire(s)” or “Retired” shall mean with respect to a Participant who is
an Employee, a Separation from Service on or after the attainment of (a)
age 65 or (b) age 50 with 5 Years of Service, and shall mean with respect
to a Participant who is a Director, a Separation from Service on or after
the attainment of age 65. If a Participant is both an Employee
and a Director and participates in the Plan in each capacity, (a) the
determination of whether the Participant qualifies for Retirement as an
Employee shall be made when the Participant experiences a Separation from
Service as an Employee and such determination shall only apply to the
applicable Account Balance established in accordance with Section 1.1 for
amounts deferred under the Plan as an Employee, and (b) the determination
of whether the Participant qualifies for Retirement as a Director shall be
made at the time the Participant experiences a Separation from Service as
a Director and such determination shall only apply to the applicable
Account Balance established in accordance with Section 1.1 for amounts
deferred under the Plan as a
Director.
|
1.29
|
“Separation
from Service” shall mean a termination of services provided by a
Participant to his or her Employer, whether voluntarily or involuntarily,
other than by reason of death or Disability, as determined by the
Committee in accordance with Treas. Reg. §1.409A-1(h). In
determining whether a Participant has experienced a Separation from
Service, the following provisions shall
apply:
|
|
(a)
|
For
a Participant who provides services to an Employer as an Employee, except
as otherwise provided in part (c) of this Section, a Separation from
Service shall occur when such Participant has experienced a termination of
employment with such Employer. A Participant shall be
considered to have experienced a termination of employment when the facts
and circumstances indicate that the Participant and his or her Employer
reasonably anticipate that either (i) no further services will be
performed for the Employer after a certain date, or (ii) that the level of
bona fide services the Participant will perform for the Employer after
such date (whether as an Employee or as an independent contractor) will
permanently decrease to less than 50% of the average level of bona fide
services performed by such Participant (whether as an Employee or an
independent contractor) over the immediately preceding 36-month period (or
the full period of services to the Employer if the Participant has been
providing services to the Employer less than 36
months).
|
|
(b)
|
For
a Participant who provides services to an Employer as an independent
contractor, except as otherwise provided in part (c) of this Section, a
Separation from Service shall occur upon the expiration of the contract
(or in the case of more than one contract, all contracts) under which
services are performed for such Employer, provided that the expiration of
such contract(s) is determined by the Committee to constitute a good-faith
and complete termination of the contractual relationship between the
Participant and such Employer.
|
|
(c)
|
For
a Participant who provides services to an Employer as both an Employee and
an independent contractor
,
a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an Employee and as an
independent contractor, as determined in accordance with the provisions
set forth in parts (a) and (b) of this Section,
respectively. Similarly, if a Participant either (i) ceases
providing services for an Employer as an independent contractor and begins
providing services for such Employer as an Employee, or (ii) ceases
providing services for an Employer as an Employee and begins providing
services for such Employer as an independent contractor, the Participant
will not be considered to have experienced a Separation from Service until
the Participant has ceased providing services for such Employer in both
capacities, as determined in accordance with the applicable provisions set
forth in parts (a) and (b) of this Section.
|
1.30
|
“Trust”
shall mean one or more trusts established by the Company in accordance
with Article 16.
|
1.31
|
“Unforeseeable
Emergency” shall mean a severe financial hardship of the Participant
resulting from (a) an illness or accident of the Participant, the
Participant’s spouse, the Participant’s Beneficiary or the Participant’s
dependent (as defined in Code Section 152 without regard to paragraphs
(b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the Participant’s
property due to casualty, or (c) such other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant, all as determined by the Committee based on
the relevant facts and
circumstances.
|
1.32
|
“Years
of Service” shall mean the total number of full years in which a
Participant has been employed by one or more Employers. For
purposes of this definition, a year of employment shall be a 365 day
period (or 366 day period in the case of a leap year) that, for the first
year of employment, commences on the Employee's date of hiring and that,
for any subsequent year, commences on an anniversary of that hiring
date. A partial year of employment shall not be treated as a
Year of Service.
|
2.1
|
Selection
by Committee
. Participation in the Plan shall be limited
to Directors and a select group of management or highly compensated
Employees, as determined by the Committee in its sole
discretion. From that group, the Committee shall select, in its
sole discretion, those individuals who may actually participate in this
Plan.
|
2.2
|
Enrollment
and Eligibility Requirements; Commencement of
Participation
.
|
|
(a)
|
As
a condition to participation, each selected Director or Employee shall
complete, execute and return to the Committee a Plan Agreement, an
Election Form and a Beneficiary Designation Form by the deadline(s)
established by the Committee in accordance with the applicable provisions
of this Plan. In addition, the Committee shall establish from
time to time such other enrollment requirements as it determines, in its
sole discretion, are necessary.
|
|
(b)
|
Each
selected Director or Employee who is eligible to participate in the Plan
shall commence participation in the Plan on the date that the Committee
determines that the Director or Employee has met all enrollment
requirements set forth in this Plan and required by the Committee,
including returning all required documents to the Committee within the
specified time period.
|
|
(c)
|
If
a Director or an Employee fails to meet all requirements established by
the Committee within the period required, that Director or Employee shall
not be eligible to participate in the Plan during such Plan
Year.
|
3.1
|
Minimum
and Maximum Deferral
.
|
|
(a)
|
Annual
Deferral Amount
. For each Plan Year, a Participant may
elect to defer, as his or her Annual Deferral Amount, subject to the
limitations provided below, Base Salary, Bonus, Commissions and/or
Director Fees up to the following maximum percentages for each deferral
elected:
|
Deferral
|
Maximum
Percentage
|
Base
Salary
|
90%
|
Bonus
|
90%
|
Commissions
|
90%
|
Director
Fees
|
100%
|
|
(b)
|
Short
Plan Year
. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of a Plan
Year, then to the extent required by Section 3.2 and Code Section 409A and
related Treasury Regulations, the maximum amount of the Participant’s Base
Salary, Bonus, Commissions or Director Fees that may be deferred by the
Participant for the Plan Year shall be determined by applying the
percentages set forth in Section 3.1(a) to the portion of such
compensation attributable to services performed after the date that the
Participant’s deferral election is
made.
|
3.2
|
Timing
of Deferral Elections; Effect of Election
Form
.
|
|
(a)
|
General
Timing Rule for Deferral Elections
. Except as otherwise
provided in this Section, in order for a Participant to make a valid
election to defer Base Salary, Bonus, Commissions and/or Director Fees,
the Participant must submit an Election Form on or before the deadline
established by the Committee, which in no event shall be later than the
December 31
st
preceding the Plan Year in which such compensation will be
earned.
|
|
(b)
|
Timing
of Deferral Elections for Newly Eligible Plan
Participants
. A selected Director or Employee who first
becomes eligible to participate in the Plan on or after the beginning of a
Plan Year, as determined in accordance with Treas. Reg.
§1.409A-2(a)(7)(ii) and the “plan aggregation” rules provided in Treas.
Reg. §1.409A-1(c)(2), may be permitted to make an election to defer the
portion of Base Salary, Bonus, Commissions and/or Director Fees
attributable to services to be performed after such election, provided
that the Participant submits an Election Form on or before the deadline
established by the Committee, which in no event shall be later than 30
days after the Participant first becomes eligible to participate in the
Plan.
|
|
(c)
|
Timing
of Deferral Elections for Fiscal Year Compensation
. In
the event that the fiscal year of an Employer is different than the
taxable year of a Participant, the Committee may determine that a deferral
election may be made for “fiscal year compensation” (as defined below), by
submitting an Election Form on or before the deadline established by the
Committee, which in no event shall be later than the last day of the
Employer’s fiscal year immediately preceding the fiscal year in which the
services related to such compensation will begin to be
performed. For purposes of this Section, the term “fiscal year
compensation” shall only include Bonus relating to a service period
coextensive with one or more consecutive fiscal years of the Employer, of
which no amount is paid or payable during the Employer’s fiscal year(s)
that constitute the service period.
|
|
(d)
|
Timing
of Deferral Elections for Performance-Based Compensation
.
Subject to the
limitations described below, the Committee may determine that an
irrevocable deferral election for an amount that qualifies as
Performance-Based Compensation may be made by submitting an Election Form
on or before the deadline established by the Committee, which in no event
shall be later than 6 months before the end of the performance
period.
|
|
(e)
|
Timing
Rule for Deferral of Compensation Subject to Risk of
Forfeiture
. With respect to compensation (i) to which a
Participant has a legally binding right to payment in a subsequent year,
and (ii) that is subject to a forfeiture condition requiring the
Participant’s continued services for a period of at least 12 months from
the date the Participant obtains the legally binding right, the Committee
may determine that an irrevocable deferral election for such compensation
may be made by timely delivering an Election Form to the Committee in
accordance with its rules and procedures, no later than the 30
th
day after the Participant obtains the legally binding right to the
compensation, provided that the election is made at least 12 months in
advance of the earliest date at which the forfeiture condition could
lapse, as determined in accordance with Treas. Reg.
§1.409A-2(a)(5).
|
3.3
|
Withholding
and Crediting of Annual Deferral Amounts
. For each Plan
Year, the Base Salary portion of the Annual Deferral Amount shall be
withheld from each regularly scheduled Base Salary payroll in equal
amounts, as adjusted from time to time for increases and decreases in Base
Salary. The Bonus, Commissions and/or Director Fee’s portion of
the Annual Deferral Amount shall be withheld at the time the Bonus,
Commissions or Director Fees are or otherwise would be paid to the
Participant, whether or not this occurs during the Plan Year
itself. Annual Deferral Amounts shall be credited to the
Participant’s Annual Account for such Plan Year at the time such amounts
would otherwise have been paid to the
Participant.
|
3.4
|
Vesting
. A
Participant shall at all times be 100% vested in the portion of his or her
Account Balance attributable to Annual Deferral Amounts, plus amounts
credited or debited on such amounts pursuant to Section
3.5.
|
3.5
|
Crediting/Debiting
of Account Balances
. In accordance with, and subject to,
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following
rules:
|
|
(a)
|
Measurement
Funds
. A Participant may elect one or more of the
measurement funds selected by the Committee, in its sole discretion, which
are based on certain mutual funds (the “Measurement Funds”), for the
purpose of crediting or debiting additional amounts to his or her Account
Balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement
Fund. Each such action will take effect as of the first day of
the first calendar quarter that begins at least 30 days after the day on
which the Committee gives Participants advance written notice of such
change.
|
|
(b)
|
Election
of Measurement Funds
. A Participant, in connection with
his or her initial deferral election in accordance with Section 3.2 above,
shall elect, on the Election Form, one or more Measurement Fund(s) (as
described in Section 3.5(a) above) to be used to determine the amounts to
be credited or debited to his or her Account Balance. If a
Participant does not elect any of the Measurement Funds as described in
the previous sentence, the Participant’s Account Balance shall
automatically be allocated into the lowest-risk Measurement Fund, as
determined by the Committee, in its sole discretion. A
Participant may (but is not required to) elect, by submitting an Election
Form to the Committee that is accepted by the Committee, to add or delete
one or more Measurement Fund(s) to be used to determine the amounts to be
credited or debited to his or her Account Balance, or to change the
portion of his or her Account Balance allocated to each previously or
newly elected Measurement Fund. If an election is made in
accordance with the previous sentence, it shall apply as of the first
business day deemed reasonably practicable by the Committee, in its sole
discretion, and shall continue thereafter for each subsequent day in which
the Participant participates in the Plan, unless changed in accordance
with the previous sentence. Notwithstanding the foregoing, the
Committee, in its sole discretion, may impose limitations on the frequency
with which one or more of the Measurement Funds elected in accordance with
this part (b) of this Section may be added or deleted by such Participant;
furthermore, the Committee, in its sole discretion, may impose limitations
on the frequency with which the Participant may change the portion of his
or her Account Balance allocated to each previously or newly elected
Measurement Fund.
|
|
(c)
|
Proportionate
Allocation
. In making any election described in part (b)
of this Section above, the Participant shall specify on the Election Form,
in increments of 1%, the percentage of his or her Account Balance or
Measurement Fund, as applicable, to be
allocated/reallocated.
|
|
(d)
|
Crediting
or Debiting Method
. The performance of each Measurement
Fund (either positive or negative) will be determined on a daily basis
based on the manner in which such Participant’s Account Balance has been
hypothetically allocated among the Measurement Funds by the
Participant.
|
|
(e)
|
No
Actual Investment
. Notwithstanding any other provision
of this Plan that may be interpreted to the contrary, the Measurement
Funds are to be used for measurement purposes only, and a Participant's
election of any such Measurement Fund, the allocation of his or her
Account Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Account Balance
shall not be considered or construed in any manner as an actual investment
of his or her Account Balance in any such Measurement Fund. In
the event that the Company or the Trustee (as that term is defined in the
Trust), in its own discretion, decides to invest funds in any or all of
the investments on which the Measurement Funds are based, no Participant
shall have any rights in or to such investments
themselves. Without limiting the foregoing, a Participant's
Account Balance shall at all times be a bookkeeping entry only and shall
not represent any investment made on his or her behalf by the Company or
the Trust; the Participant shall at all times remain an unsecured creditor
of the Company.
|
3.6
|
FICA
and Other Taxes
.
|
|
(a)
|
Annual
Deferral Amounts
. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the Participant’s
Employer(s) shall withhold from that portion of the Participant’s Base
Salary, Bonus and/or Commissions that is not being deferred, in a manner
determined by the Employer(s), the Participant’s share of FICA and other
employment taxes on such Annual Deferral Amount. If necessary,
the Committee may reduce the Annual Deferral Amount in order to comply
with this Section.
|
|
(b)
|
Distributions
. The
Participant’s Employer(s), or the trustee of the Trust, shall withhold
from any payments made to a Participant under this Plan all federal, state
and local income, employment and other taxes required to be withheld by
the Employer(s), or the trustee of the Trust, in connection with such
payments, in amounts and in a manner to be determined in the sole
discretion of the Employer(s) and the trustee of the
Trust.
|
3.7
|
Automatic
Cancellation of Deferral Election upon Receipt of Hardship Withdrawal from
a 401(k) Plan
.
|
|
(a)
|
A
Participant’s deferral elections under this Plan in effect at the time of
a 401(k) hardship withdrawal shall be cancelled (rather than postponed or
delayed) prospectively so that no further deferrals from his Base Salary,
Bonus, Commissions and/or Director Fees shall be made during the 401(k)
hardship withdrawal required cancellation period or with respect to the
calendar year in which the 401(k) hardship withdrawal required
cancellation period begins. Such cancellation shall be effected
in accordance with the requirements of Code Section 409A and, to the
extent not inconsistent therewith, the provisions of this
Section.
|
|
(b)
|
A
Participant whose deferral elections under this Plan are cancelled
pursuant to this Section may file a new deferral election in order to
commence or recommence making deferrals under the Plan from his Base
Salary, Bonus, Commissions and/or Director Fees at the later of
(i) the first payroll period that commences after the end of the
401(k) hardship withdrawal required cancellation period or (ii) the
Participant’s next election period under the Plan. The new
election shall be made in the same manner as other elections under the
Plan, but no later than the last day required for filing the Participant’s
next or any subsequent election on or following which the Participant’s
deferrals from his compensation will commence or recommence, and shall
apply only to Base Salary, Bonus, Commissions and/or Director Fees earned
after the new election becomes effective as and to the extent required by
Code Section 409A.
|
|
(c)
|
For
purposes hereof, the following terms have the following
meanings:
|
|
(i)
|
A
“401(k) hardship withdrawal” is a hardship withdrawal from a 401(k) plan
which requires a suspension of employee contributions and elective
deferrals as a result of receipt of the hardship withdrawal in order to
satisfy the regulations under Code Section
401(k).
|
|
(ii)
|
The
“401(k) hardship withdrawal required cancellation period” means the 6
month period (or other stated period in the 401(k) plan) during which
employee contributions and elective deferrals must be suspended as a
result of receipt of a 401(k) hardship withdrawal in order to satisfy the
regulations under Code Section
401(k).
|
|
(iii)
|
A
“401(k) Plan” means a plan qualified under Code Section 401(a) that
contains a cash or deferral arrangement described in Code Section 401(k)
maintained by the Employer or any other business entity or other
organization (whether or not incorporated) which during the relevant
period is treated (but only for the portion of the period so treated and
for the purpose and to the extent required to be so treated) as a single
employer with the Employer or any affiliate under Code Section 414(b),
(c), (m) or (o), as it may be amended from time to time, or any successor
thereto.
|
3.8
|
Automatic
Suspension
of Deferral Right
upon
Receipt of
Voluntary
Withdrawal pursuant to the 2002
Plan
. Under
Section 4.4 of the 2002 Plan (see Appendix B), a Participant (or, after a
Participant’s death, his or her Beneficiary) may elect, at any time, to
withdraw all of his or her vested Account Balance under the 2002 Plan,
less a withdrawal penalty equal to 10% of such amount (the net amount
shall be referred to as the “Withdrawal Amount”). Once the
Withdrawal Amount is paid, the Participant's participation in the Plan
shall be suspended from making deferral elections for the Plan Year
immediately following the Plan Year the distribution is made and for the
first portion of the next Plan Year after such full Plan Year of
suspension equal to the remainder of the Plan Year following the date the
distribution is made.
|
4.1
|
Short-Term
Payouts
. In connection with each election to defer an
Annual Deferral Amount, a Participant may elect to receive all or a
portion of such Annual Deferral Amount, plus amounts credited or debited
on that amount pursuant to Section 3.5, in the form of a lump sum payment,
calculated as of the close of business on or around the Benefit
Distribution Date designated by the Participant in accordance with this
Section (a “Short-Term Payout”). The Benefit Distribution Date
for the amount subject to a Short-Term Payout election shall be the first
day of any Plan Year designated by the Participant, which may be no sooner
than 2 Plan Years after the end of the Plan Year to which the
Participant’s deferral election relates, unless otherwise provided on an
Election Form approved by the
Committee.
|
4.2
|
Postponing
Short-Term Payouts
. With respect to each Short-Term
Payout, a Participant may elect one time only to postpone a Short-Term
Payout described in Section 4.1 above, and have such amount paid out
during a 60 day period commencing immediately after an allowable
alternative Benefit Distribution Date designated in accordance with this
Section. In order to make such an election, the Participant
must submit an Election Form to the Committee in accordance with the
following criteria:
|
|
(a)
|
The
election of the new Benefit Distribution Date shall have no effect until
at least 13 months after the date on which the election is
made;
|
|
(b)
|
The
new Benefit Distribution Date selected by the Participant for such
Short-Term Payout must be the first day of a Plan Year that is no sooner
than 5 years after the previously designated Benefit Distribution Date;
and
|
|
(c)
|
The
election must be made
at least 13 months
prior to the Participant's previously designated Benefit Distribution Date
for such Short-Term Payout.
|
4.3
|
Other
Benefits Take Precedence Over Short-Term Payouts
. Should
an event occur prior to any Benefit Distribution Date designated for a
Short-Term Payout that would trigger a benefit under Articles 5 through 9,
as applicable, all amounts subject to a Short-Term Payout election shall
be paid in accordance with the other applicable provisions of the Plan and
not in accordance with this Article
4.
|
5.1
|
Unforeseeable
Emergencies
.
|
|
(a)
|
If
a Participant experiences an Unforeseeable Emergency prior to the
occurrence of a distribution event described in Articles 6 through 9, as
applicable, the Participant may petition the Committee to receive a
partial or full payout from the Plan. The payout, if any, from
the Plan shall not exceed the lesser of (i) the Participant's vested
Account Balance, calculated as of the close of business on or around the
Benefit Distribution Date for such payout, as determined by the Committee
in accordance with provisions set forth below, or (ii) the amount
necessary to satisfy the Unforeseeable Emergency, plus amounts necessary
to pay Federal, state, or local income taxes or penalties reasonably
anticipated as a result of the distribution. A Participant
shall not be eligible to receive a payout from the Plan to the extent that
the Unforeseeable Emergency is or may be relieved (A) through
reimbursement or compensation by insurance or otherwise, (B) by
liquidation of the Participant’s assets, to the extent the liquidation of
such assets would not itself cause severe financial hardship or (C) by
cessation of deferrals under this
Plan.
|
|
(b)
|
If
the Committee, in its sole discretion, approves a Participant’s petition
for payout from the Plan, the Participant’s Benefit Distribution Date for
such payout shall be the date on which such Committee approval occurs and
such payout shall be distributed to the Participant in a lump sum no later
than 60 days after such Benefit Distribution Date. In addition,
in the event of such approval the Participant’s outstanding deferral
elections under the Plan shall be
cancelled.
|
6.1
|
Retirement
Benefit
. If a Participant experiences a Separation from
Service that qualifies as a Retirement, the Participant shall be eligible
to receive his or her vested Account Balance in either a lump sum or
annual installment payments, as elected by the Participant in accordance
with Section 6.2 (the “Retirement Benefit”). A Participant’s
Retirement Benefit shall be calculated as of the close of business on or
around the applicable Benefit Distribution Date for such benefit, which
shall be (a) a date selected by the Committee in the immediately following
January in the case Participants who experience a Separation from Service
during the first half (January through June) of a calendar year or (b) a
date selected by the Committee in the immediately following July in the
case Participants who experience a Separation from Service during the
second half (July through December) of a calendar year; provided, however,
if a Participant changes the form of distribution for the Retirement
Benefit in accordance with Section 6.2(b), the Benefit Distribution Date
for the Retirement Benefit shall be determined in accordance with Section
6.2(b).
|
6.2
|
Payment
of Retirement Benefit
.
|
|
(a)
|
The
Retirement Benefit shall be paid to the Participant during the calendar
month which contains the Participant’s Benefit Distribution
Date.
|
|
(b)
|
A
Participant, in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form to receive the Retirement
Benefit in a lump sum or pursuant to an Annual Installment Method between
2 and 20 years. If a Participant does not make any election
with respect to the payment of the Retirement Benefit, then such
Participant shall be deemed to have elected to receive the Retirement
Benefit as a lump sum.
|
|
(c)
|
A
Participant may change, twice but not more than twice, the form of payment
for the Retirement Benefit by submitting an Election Form to the Committee
in accordance with the following
criteria:
|
|
(i)
|
The
election shall not take effect until at least 13 months after the date on
which the election is made;
|
|
(ii)
|
The
new Benefit Distribution Date for the Participant’s Retirement Benefit
shall be 5 years after the Benefit Distribution Date that would otherwise
have been applicable to such benefit;
and
|
|
(iii)
|
The
election must be made at least 13 months prior to the Benefit Distribution
Date that would otherwise have been applicable to the Participant’s
Retirement Benefit.
|
|
(d)
|
The
lump sum payment shall be made, or installment payments shall commence
during the calendar month which contains the Participant’s Benefit
Distribution Date. Remaining installments, if any, shall be
paid during the calendar month which contains each anniversary of the
Participant’s Benefit Distribution
Date.
|
7.1
|
Termination
Benefit
. If a Participant experiences a Separation from
Service that does not qualify as a Retirement, the Participant shall
receive his or her vested Account Balance in either a lump sum or annual
installment payments, as elected by the Participant in accordance with
Section 6.2 (the “Termination Benefit”). A Participant’s
Termination Benefit shall be calculated as of the close of business on or
around the applicable Benefit Distribution Date for such benefit, which
shall be (a) a date selected by the Committee in the immediately following
January in the case Participants who experience a Separation from Service
during the first half (January through June) of a calendar year or (b) a
date selected by the Committee in the immediately following July in the
case Participants who experience a Separation from Service during the
second half (July through December) of a calendar
year.
|
7.2
|
Payment
of Termination Benefit
.
|
|
(a)
|
The
Termination Benefit shall be paid to the Participant during the calendar
month which contains the Participant’s Benefit Distribution
Date.
|
|
(b)
|
A
Participant, in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form to receive the Termination
Benefit in a lump sum or pursuant to an Annual Installment Method over 3
years. If a Participant does not make any election with respect
to the payment of the Termination Benefit, then such Participant shall be
deemed to have elected to receive the Termination Benefit as a lump
sum. Unless otherwise permitted by the Committee, the same
payment election must be made for the Participant’s Termination Benefit,
Disability Benefit and Death
Benefit.
|
|
(c)
|
A
Participant may not change the form of payment for the Termination
Benefit.
|
8.1
|
Disability
Benefit
. If a Participant becomes Disabled prior to the occurrence
of a distribution event described in Articles 6 through 7, as applicable,
the Participant shall receive his or her vested Account Balance in either
a lump sum or annual installment payments, as elected by the Participant
in accordance with Section 6.2 (the “Disability Benefit”). A
Participant’s Disability Benefit shall be calculated as of the close of
business on or around the applicable Benefit Distribution Date for such
benefit, which shall be (a) a date selected by the Committee in the
immediately following July in the case Participants who become Disabled
during the first half (January through June) of a calendar year or (b) a
date selected by the Committee in the immediately following January in the
case Participants who become Disabled during the second half (July through
December) of a calendar year.
|
8.2
|
Payment
of Disability Benefit
.
|
|
(a)
|
The
Disability Benefit shall be paid to the Participant during the calendar
month which contains the Participant’s Benefit Distribution
Date.
|
|
(b)
|
A
Participant, in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form to receive the Disability
Benefit in a lump sum or pursuant to an Annual Installment Method over 3
years. If a Participant does not make any election with respect
to the payment of the Disability Benefit, then such Participant shall be
deemed to have elected to receive the Disability Benefit as a lump
sum. Unless otherwise permitted by the Committee, the same
payment election must be made for the Participant’s Termination Benefit,
Disability Benefit and Death
Benefit.
|
|
(c)
|
A
Participant may not change the form of payment for the Disability
Benefit.
|
9.1
|
Death
Benefit
. In the event of a Participant’s death prior to
the complete distribution of his or her vested Account Balance, the
Participant's Beneficiary(ies) shall receive the Participant's unpaid
vested Account Balance in either a lump sum or annual installment
payments, as elected by the Participant in accordance with Section 6.2
(the “Death Benefit”). The Death Benefit shall be calculated as
of the close of business on or around the applicable Benefit Distribution
Date for such benefit, which shall be (a) a date selected by the Committee
in the immediately following July in the case Participants who die during
the first half (January through June) of a calendar year or (b) a date
selected by the Committee in the immediately following January in the case
Participants who die during the second half (July through December) of a
calendar year or (c) if later, the date on which the Committee is provided
with proof that is satisfactory to the Committee of the Participant’s
death.
|
|
(a)
|
The
Death Benefit shall be paid to the Participant’s Beneficiary(ies) during
the calendar month which contains the Participant’s Benefit Distribution
Date.
|
|
(b)
|
A
Participant, in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form to receive the Death Benefit
in a lump sum or pursuant to an Annual Installment Method over 3
years. If a Participant does not make any election with respect
to the payment of the Death Benefit, then such Participant shall be deemed
to have elected to receive the Death Benefit as a lump
sum. Unless otherwise permitted by the Committee, the same
payment election must be made for the Participant’s Termination Benefit,
Disability Benefit and Death
Benefit.
|
|
(c)
|
A
Participant may not change the form of payment for the Death
Benefit.
|
10.1
|
Beneficiary
. Each
Participant shall have the right, at any time, to designate his or her
Beneficiary(ies) (both primary as well as contingent) to receive any
benefits payable under the Plan to a beneficiary upon the death of a
Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant
participates.
|
10.2
|
Beneficiary
Designation; Change; Spousal Consent
. A Participant
shall designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the Committee or its
designated agent. A Participant shall have the right to change
a Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Committee's rules and
procedures, as in effect from time to time. If the Participant
names someone other than his or her spouse as a Beneficiary, the Committee
may, in its sole discretion, determine that spousal consent is required to
be provided in a form designated by the Committee, executed by such
Participant's spouse and returned to the Committee. Upon the
acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be
canceled. The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and accepted by the
Committee prior to his or her
death.
|
10.3
|
Acknowledgment
. No
designation or change in designation of a Beneficiary shall be effective
until received and acknowledged in writing by the Committee or its
designated agent.
|
10.4
|
No
Beneficiary Designation
. If a Participant fails to
designate a Beneficiary as provided in Sections 10.1, 10.2 and 10.3 above
or, if all designated Beneficiaries predecease the Participant or die
prior to complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse,
the benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant's
estate.
|
10.5
|
Doubt
as to Beneficiary
. If the Committee has any doubt as to
the proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to cause
the Participant's Employer to withhold such payments until this matter is
resolved to the Committee's
satisfaction.
|
10.6
|
Discharge
of Obligations
. The payment of benefits under the Plan
to a Beneficiary shall fully and completely discharge all Employers and
the Committee from all further obligations under this Plan with respect to
the Participant, and that Participant's Plan Agreement shall terminate
upon such full payment of benefits.
|
11.1
|
Paid
Leave of Absence
. If a Participant is authorized by the
Participant's Employer to take a paid leave of absence from the employment
of the Employer, and such leave of absence does not constitute a
Separation from Service, (a) the Participant shall continue to be
considered eligible for the benefits provided under the Plan, and (b) the
Annual Deferral Amount
shall continue to
be withheld during such paid leave of absence in accordance with Section
3.2.
|
11.2
|
Unpaid
Leave of Absence
. If a Participant is authorized by the
Participant's Employer to take an unpaid leave of absence from the
employment of the Employer for any reason, and such leave of absence does
not constitute a Separation from Service, such Participant shall continue
to be eligible for the benefits provided under the Plan. During
the unpaid leave of absence, the Participant shall not be allowed to make
any additional deferral elections. However, if the Participant
returns to employment, the Participant may elect to defer an Annual
Deferral Amount for the Plan Year following his or her return to
employment and for every Plan Year thereafter while a Participant in the
Plan, provided such deferral elections are otherwise allowed and an
Election Form is delivered to and accepted by the Committee for each such
election in accordance with Section 3.2
above.
|
12.1
|
Termination
of Plan
. Although each Employer anticipates that it will
continue the Plan for an indefinite period of time, there is no guarantee
that any Employer will continue the Plan or will not terminate the Plan at
any time in the future. Accordingly, each Employer reserves the
right to terminate the Plan with respect to all of its
Participants. In the event of a Plan termination no new
deferral elections shall be permitted for the affected
Participants. However, after the Plan termination the Account
Balances of such Participants shall continue to be credited with Annual
Deferral Amounts attributable to a deferral election that was in effect
prior to the Plan termination to the extent deemed necessary to comply
with Code Section 409A and related Treasury Regulations, and additional
amounts shall continue to credited or debited to such Participants’
Account Balances pursuant to Section 3.5. The Measurement Funds
available to Participants following the termination of the Plan shall be
comparable in number and type to those Measurement Funds available to
Participants in the Plan Year preceding the Plan Year in which the Plan
termination is effective.
In addition,
following a Plan
termination, Participant Account Balances shall remain in the Plan and
shall not be distributed until such amounts become eligible for
distribution in accordance with the other applicable provisions of the
Plan.
Notwithstanding
the preceding sentence, to the extent permitted by Treas. Reg.
§1.409A-3(j)(4)(ix), the Employer may provide that upon termination of the
Plan, all Account Balances of the Participants shall be distributed,
subject to and in accordance with any rules established by such Employer
deemed necessary to comply with the applicable requirements and
limitations of Treas. Reg.
§1.409A-3(j)(4)(ix).
|
12.2
|
Amendment
. Any
Employer may, at any time, amend or modify the Plan in whole or in part
with respect to that Employer. Notwithstanding the foregoing,
(i) no amendment or modification shall be effective to decrease the value
of a Participant's vested Account Balance in existence at the time the
amendment or modification is made, and (ii) no amendment or modification
of this Section or Section 13.2 of the Plan shall be effective.
|
12.3
|
Plan
Agreement
. Despite the provisions of Sections 12.1, if a
Participant's Plan Agreement contains benefits or limitations that are not
in this Plan document, the Employer may only amend or terminate such
provisions with the written consent of the
Participant.
|
12.4
|
Effect
of Payment
. The full payment of the Participant’s vested
Account Balance in accordance with the applicable provisions of the Plan
shall completely discharge all obligations to a Participant and his or her
designated Beneficiaries under this Plan, and the Participant's Plan
Agreement shall terminate.
|
13.1
|
Committee
Duties
. Except as otherwise provided in this Article 13,
this Plan shall be administered by a Committee, which shall consist of the
Board, or such committee as the Board shall appoint. Members of
the Committee may be Participants under this Plan. The
Committee shall also have the discretion and authority to (a) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Plan, and (b) decide or resolve any and all
questions, including benefit entitlement determinations and
interpretations of this Plan, as may arise in connection with the
Plan. Any individual serving on the Committee who is a
Participant shall not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the
Committee shall be entitled to rely on information furnished by a
Participant or the Company.
|
13.2
|
Administration
Upon Change In Control
. Within 120 days following a Change in
Control, the individuals who comprised the Committee immediately prior to
the Change in Control (whether or not such individuals are members of the
Committee following the Change in Control) may, by written consent of the
majority of such individuals, appoint an independent third party
administrator (the “Administrator”) to perform any or all of the
Committee’s duties described in Section 13.1 above, including without
limitation, the power to determine any questions arising in connection
with the administration or interpretation of the Plan, and the power to
make benefit entitlement determinations. Upon and after the
effective date of such appointment, (a) the Company must pay all
reasonable administrative expenses and fees of the Administrator, and (b)
the Administrator may only be terminated with the written consent of the
majority of Participants with an Account Balance in the Plan as of the
date of such proposed termination.
|
13.3
|
Agents
.
In the administration of this Plan, the Committee or the Administrator, as
applicable, may, from time to time, employ agents and delegate to them
such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with
counsel.
|
13.4
|
Binding
Effect of Decisions
. The decision or action of the
Committee or Administrator, as applicable, with respect to any question
arising out of or in connection with the administration, interpretation
and application of the Plan and the rules and regulations promulgated
hereunder shall be final and conclusive and binding upon all persons
having any interest in the
Plan.
|
13.5
|
Indemnity
of Committee
. All Employers shall indemnify and hold
harmless the members of the Committee, any Employee to whom the duties of
the Committee may be delegated, and the Administrator against any and all
claims, losses, damages, expenses or liabilities arising from any action
or failure to act with respect to this Plan, except in the case of willful
misconduct by the Committee, any of its members, any such Employee or the
Administrator.
|
13.6
|
Employer
Information
. To enable the Committee and/or
Administrator to perform its functions, the Company and each Employer
shall supply full and timely information to the Committee and/or
Administrator, as the case may be, on all matters relating to the Plan,
the Trust, the Participants and their Beneficiaries, the Account Balances
of the Participants, the compensation of its Participants, the date and
circumstances of the Separation from Service, Disability or death of its
Participants, and such other pertinent information as the Committee or
Administrator may reasonably
require.
|
14.1
|
Coordination
with Other Benefits
. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in addition
to any other benefits available to such Participant under any other plan
or program for employees of the Participant's Employer. The
Plan shall supplement and shall not supersede, modify or amend any other
such plan or program except as may otherwise be expressly
provided.
|
15.1
|
Presentation
of Claim
. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
“Claimant”) may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within 60 days
after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the
Claimant.
|
15.2
|
Notification
of Decision
. The Committee shall consider a Claimant's
claim within a reasonable time, but no later than 90 days after receiving
the claim. If the Committee determines that special
circumstances require an extension of time for processing the claim,
written notice of the extension shall be furnished to the Claimant prior
to the termination of the initial 90 day period. In no event
shall such extension exceed a period of 90 days from the end of the
initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. The
Committee shall notify the Claimant in
writing:
|
|
(a)
|
that
the Claimant's requested determination has been made, and that the claim
has been allowed in full; or
|
|
(b)
|
that
the Committee has reached a conclusion contrary, in whole or in part, to
the Claimant's requested determination, and such notice must set forth in
a manner calculated to be understood by the
Claimant:
|
|
(i)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
|
(ii)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
|
(iii)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;
|
|
(iv)
|
an
explanation of the claim review procedure set forth in Section 15.3 below;
and
|
|
(v)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
|
15.3
|
Review
of a Denied Claim
. On or before 60 days after receiving
a notice from the Committee that a claim has been denied, in whole or in
part, a Claimant (or the Claimant's duly authorized representative) may
file with the Committee a written request for a review of the denial of
the claim. The Claimant (or the Claimant's duly authorized
representative):
|
|
(a)
|
may,
upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claim for
benefits;
|
|
(b)
|
may
submit written comments or other documents;
and/or
|
|
(c)
|
may
request a hearing, which the Committee, in its sole discretion, may
grant.
|
15.4
|
Decision
on Review
. The Committee shall render its decision on
review promptly, and no later than 60 days after the Committee receives
the Claimant’s written request for a review of the denial of the
claim. If the Committee determines that special circumstances
require an extension of time for processing the claim, written notice of
the extension shall be furnished to the Claimant prior to the termination
of the initial 60 day period. In no event shall such extension
exceed a period of 60 days from the end of the initial
period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. In
rendering its decision, the Committee shall take into account all
comments, documents, records and other information submitted by the
Claimant relating to the claim, without regard to whether such information
was submitted or considered in the initial benefit
determination. The decision must be written in a manner
calculated to be understood by the Claimant, and it must
contain:
|
|
(a)
|
specific
reasons for the decision;
|
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;
|
|
(c)
|
a
statement that the Claimant is entitled to receive, upon request and free
of charge, reasonable access to and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to
the Claimant’s claim for benefits;
and
|
|
(d)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a).
|
15.5
|
Legal
Action
. A Claimant's compliance with the foregoing
provisions of this Article 15 is a mandatory prerequisite to a Claimant's
right to commence any legal action with respect to any claim for benefits
under this Plan.
|
16.1
|
Establishment
of the Trust
. In order to provide assets from which to
fulfill its obligations to the Participants and their Beneficiaries under
the Plan, the Company may establish a trust by a trust agreement with a
third party, the trustee, to which each Employer may, in its discretion,
contribute cash or other property, including securities issued by the
Company, to provide for the benefit payments under the Plan (the
“Trust”).
|
16.2
|
Interrelationship
of the Plan and the Trust
. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the Employers, Participants and the creditors
of the Employers to the assets transferred to the Trust. Each
Employer shall at all times remain liable to carry out its obligations
under the Plan.
|
16.3
|
Distributions
From the Trust
. Each Employer's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the terms
of the Trust, and any such distribution shall reduce the Employer's
obligations under this Plan.
|
17.1
|
Status
of Plan
. The Plan is intended to be a plan that is not
qualified within the meaning of Code Section 401(a) and that “is unfunded
and is maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees” within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1). Except with respect to Account
Balances not subject to Code Section 409A, the Plan shall be administered
and interpreted (a) to the extent possible in a manner consistent with the
intent described in the preceding sentence, and (b) in accordance with
Code Section 409A and related Treasury guidance and
Regulations.
|
17.2
|
Unsecured
General Creditor
. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interests or claims in any property or assets of an
Employer. For purposes of the payment of benefits under this
Plan, any and all of an Employer's assets shall be, and remain, the
general, unpledged unrestricted assets of the Employer. An
Employer's obligation under the Plan shall be merely that of an unfunded
and unsecured promise to pay money in the
future.
|
17.3
|
Employer's
Liability
. An Employer's liability for the payment of
benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Employer and a Participant. An
Employer shall have no obligation to a Participant under the Plan except
as expressly provided in the Plan and his or her Plan
Agreement.
|
17.4
|
Nonassignability
. Neither
a Participant nor any other person shall have any right to commute, sell,
assign, transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are expressly declared to be, unassignable and
non-transferable. No part of the amounts payable shall, prior
to actual payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, be transferable by
operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or
otherwise.
|
17.5
|
Not
a Contract of Employment
. The terms and conditions of
this Plan shall not be deemed to constitute a contract of employment
between any Employer and the Participant. Such employment is
hereby acknowledged to be an “at will” employment relationship that can be
terminated at any time for any reason, or no reason, with or without
cause, and with or without notice, unless expressly provided in a written
employment agreement. Nothing in this Plan shall be deemed to
give a Participant the right to be retained in the service of any
Employer, either as an Employee or a Director, or to interfere with the
right of any Employer to discipline or discharge the Participant at any
time.
|
17.6
|
Furnishing
Information
. A Participant or his or her Beneficiary
will cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem
necessary.
|
17.7
|
Terms
. Whenever
any words are used herein in the masculine, they shall be construed as
though they were in the feminine in all cases where they would so apply;
and whenever any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so
apply.
|
17.8
|
Captions
. The
captions of the articles, sections and paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or
construction of any of its
provisions.
|
17.9
|
Governing
Law
. Subject to ERISA, the provisions of this Plan shall
be construed and interpreted according to the internal laws of the State
of Mississippi without regard to its conflicts of laws
principles.
|
17.10
|
Notice
. Any
notice or filing required or permitted to be given to the Committee under
this Plan shall be sufficient if in writing and hand-delivered, or sent by
registered or certified mail, to the address
below:
|
17.11
|
Successors
. The
provisions of this Plan shall bind and inure to the benefit of the
Participant's Employer and its successors and assigns and the Participant
and the Participant's designated
Beneficiaries.
|
17.12
|
Spouse's
Interest
. The interest in the benefits hereunder of a
spouse of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
|
17.13
|
Validity
. In
case any provision of this Plan shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but this Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted
herein.
|
17.14
|
Incompetent
. If
the Committee determines in its discretion that a benefit under this Plan
is to be paid to a minor, a person declared incompetent or to a person
incapable of handling the disposition of that person's property, the
Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any
payment of a benefit shall be a payment for the account of the Participant
and the Participant's Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Plan for such payment
amount.
|
17.15
|
Domestic
Relations Orders
. If necessary to comply with a domestic
relations order, as defined in Code Section 414(p)(1)(B), pursuant to
which a court has determined that a spouse or former spouse of a
Participant has an interest in the Participant’s benefits under the Plan,
the Committee shall have the right to immediately distribute the spouse’s
or former spouse’s interest in the Participant’s benefits under the Plan
to such spouse or former spouse.
|
17.16
|
Distribution
in the Event of Income Inclusion Under Code Section
409A
. If any portion of a Participant’s Account Balance
under this Plan is required to be included in income by the Participant
prior to receipt due to a failure of this Plan to comply with the
requirements of Code Section 409A and related Treasury Regulations, the
Committee may determine that such Participant shall receive a distribution
from the Plan in an amount equal to the lesser of (i) the portion of his
or her Account Balance required to be included in income as a result of
the failure of the Plan to comply with the requirements of Code Section
409A and related Treasury Regulations, or (ii) the unpaid vested Account
Balance.
|
17.17
|
Deduction
Limitation on Benefit Payments
.
If an Employer
reasonably anticipates that the Employer’s deduction with respect to any
distribution from this Plan would be limited or eliminated by application
of Code Section 162(m), then to the extent permitted by Treas. Reg.
§1.409A-2(b)(7)(i), payment shall be delayed as deemed necessary to ensure
that the entire amount of any distribution from this Plan is
deductible. Any amounts for which distribution is delayed
pursuant to this Section shall continue to be credited/debited with
additional amounts in accordance with Section 3.5. The delayed
amounts (and any amounts credited thereon) shall be distributed to the
Participant (or his or her Beneficiary in the event of the Participant’s
death) at the earliest date the Employer reasonably anticipates that the
deduction of the payment of the amount will not be limited or eliminated
by application of Code Section 162(m). In the event that such
date is determined to be after a Participant’s Separation from Service and
the Participant to whom the payment relates is determined to be a
Specified Employee, then to the extent deemed necessary to comply with
Treas. Reg. §1.409A-3(i)(2), the delayed payment shall not made before the
end of the six-month period following such Participant’s Separation from
Service.
|
17.18
|
Insurance
. The
Employers, on their own behalf or on behalf of the trustee of the Trust,
and, in their sole discretion, may apply for and procure insurance on the
life of the Participant, in such amounts and in such forms as the trustee
of the Trust may choose. The Employers or the trustee of the
Trust, as the case may be, shall be the sole owner and beneficiary of any
such insurance. The Participant shall have no interest
whatsoever in any such policy or policies, and at the request of the
Employers shall submit to medical examinations and supply such information
and execute such documents as may be required by the insurance company or
companies to whom the Employers have applied for
insurance.
|
17.19
|
Legal
Fees To Enforce Rights After Change in Control
. The
Company and each Employer is aware that upon the occurrence of a Change in
Control, the Board or the board of directors of a Participant’s Employer
(which might then be composed of new members) or a shareholder of the
Company or the Participant’s Employer, or of any successor corporation
might then cause or attempt to cause the Company, the Participant’s
Employer or such successor to refuse to comply with its obligations under
the Plan and might cause or attempt to cause the Company or the
Participant’s Employer to institute, or may institute, litigation seeking
to deny Participants the benefits intended under the Plan. In
these circumstances, the purpose of the Plan could be
frustrated. Accordingly, if, following a Change in Control, it
should appear to any Participant that the Company, the Participant’s
Employer or any successor corporation has failed to comply with any of its
obligations under the Plan or any agreement thereunder or, if the Company,
such Employer or any other person takes any action to declare the Plan
void or unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from any Participant the benefits
intended to be provided, then the Company and the Participant’s Employer
irrevocably authorize such Participant to retain counsel of his or her
choice at the expense of the Company and the Participant’s Employer (who
shall be jointly and severally liable) to represent such Participant in
connection with the initiation or defense of any litigation or other legal
action, whether by or against the Company, the Participant’s Employer or
any director, officer, shareholder or other person affiliated with the
Company, the Participant’s Employer or any successor thereto in any
jurisdiction.
|
“Company”
|
|||
Trustmark
Corporation, a Mississippi corporation
|
|||
By:
|
|||
Title:
|
1.1
|
“Annual
Deferral Amount” shall mean that portion of a Participant's Base Annual
Salary, Annual Bonus and Directors Fees that a Participant defers in
accordance with Article 3 for any one Plan Year. In the event
of a Participant's Retirement, Short-Term Disability (if deferrals cease
in accordance with Section 8.1), Long-Term Disability, death or a
Termination of Employment prior to the end of a Plan Year, such year's
Annual Deferral Amount shall be the actual amount withheld prior to such
event.
|
1.2
|
“Annual
Installment Method” shall be an annual installment payment over the number
of years selected by the Participant in accordance with this Plan,
calculated as follows: the vested Account Balance of the Participant shall
be calculated as of the close of business on or around
the last business
day of the year. The annual installment shall be calculated by
multiplying this balance by a fraction, the numerator of which is one and
the denominator of which is the remaining number of annual payments due
the Participant. By way of example, if the Participant elects a
10 year Annual Installment Method, the first payment shall is 1/10th of
the vested Account Balance, calculated as described in this
definition. The following year, the payment shall be 1/9 of the
vested Account Balance, calculated as described in this
definition. Each annual installment shall be paid no later than
60 days after the last business day of the applicable
year. Shares of Stock that shall be distributable from the
Stock Option Gain Account shall be distributable in shares of actual Stock
in the same manner previously described. However, the Committee
may, in its sole discretion, (i) adjust the annual installments in order
to distribute whole shares of actual Stock and/or (ii) accelerate the
distribution of such actual shares of Stock by payment of a lump
sum.
|
1.3
|
“Deduction
Limitation” shall mean the following described limitation on a benefit
that may otherwise be distributable pursuant to the provisions of this
Plan. Except as otherwise provided, this limitation shall be
applied to all distributions that are “subject to the Deduction
Limitation” under this Plan. If an Employer determines in good
faith prior to a Change in Control that there is a reasonable likelihood
that any compensation paid to a Participant for a taxable year of the
Employer would not be deductible by the Employer solely by reason of the
limitation under Code Section 162(m), then to the extent deemed necessary
by the Employer to ensure that the entire amount of any distribution to
the Participant pursuant to this Plan prior to the Change in Control is
deductible, the Employer may defer all or any portion of a distribution
under this Plan. Any amounts deferred pursuant to this
limitation shall continue to be credited/debited with additional amounts
in accordance with Section 3.5 below, even if such amount is being paid
out in installments. The amounts so deferred and amounts
credited thereon shall be distributed to the Participant or his or her
Beneficiary (in the event of the Participant's death) at the earliest
possible date, as determined by the Employer in good faith, on which the
deductibility of compensation paid or payable to the Participant for the
taxable year of the Employer during which the distribution is made will
not be limited by Section 162(m), or if earlier, the effective date of a
Change in Control. Notwithstanding anything to the contrary in
this Plan, the Deduction Limitation shall not apply to any distributions
made after a Change in Control.
|
1.4
|
“Disability
Benefit” shall mean the benefit set forth in Article
8.
|
1.5
|
“Long-Term
Disability” shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant’s
Employer’s long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the
Participant’s Employer does not sponsor such a plan, or discontinues to
sponsor such a plan, Long-Term Disability shall be determined by the
Committee in its sole discretion.
|
1.6
|
“Pre-Retirement
Survivor Benefit” shall mean the benefit set forth in Article
6.
|
1.7
|
“Retirement”,
“Retire(s)” or “Retired” shall mean, with respect to an Employee,
severance from employment from all Employers for any reason other than a
leave of absence, death or Long-Term Disability on or after the earlier of
the attainment of (a) age 65 or (b) age 50 with 5 Years of Service; and
shall mean with respect to a Director who is not an Employee, severance of
his or her directorships with all Employers on or after the attainment of
age 65.
|
1.8
|
“Retirement
Benefit” shall mean the benefit set forth in Article
5.
|
1.9
|
“Short-Term
Disability” shall mean a period of disability during which a Participant
qualifies for short-term disability benefits under the Participant’s
Employer’s short-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for short-term disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the
Participant’s Employer does not sponsor such a plan, or discontinues to
sponsor such a plan, Short-Term Disability shall be determined by the
Committee in its sole discretion.
|
1.10
|
“Short-Term
Payout” shall mean the payout set forth in Section
4.1.
|
1.11
|
“Termination
Benefit” shall mean the benefit set forth in Article
7.
|
1.12
|
“Termination
of Employment” shall mean the severing of employment with all Employers,
or service as a Director of all Employers, voluntarily or involuntarily,
for any reason other than Retirement, Long-Term Disability, death or an
authorized leave of absence. If a Participant is both an
Employee and a Director, a Termination of Employment shall occur only upon
the termination of the last position held; provided, however, that such a
Participant may elect, at least three years before Termination of
Employment and in accordance with the policies and procedures established
by the Committee, to be treated for purposes of this Plan as having
experienced a Termination of Employment at the time he or she ceases
employment with an Employer as an
Employee.
|
1.13
|
“Unforeseeable
Financial Emergency” shall mean an unanticipated emergency that is caused
by an event beyond the control of the Participant that would result in
severe financial hardship to the Participant resulting from (i) a sudden
and unexpected illness or accident of the Participant or a dependent of
the Participant, (ii) a loss of the Participant's property due to
casualty, or (iii) such other extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, all as determined in the sole discretion of the
Committee.
|
1.14
|
“Years
of Service” shall mean the total number of full years in which a
Participant has been employed by one or more Employers. For
purposes of this definition, a year of employment shall be a 365 day
period (or 366 day period in the case of a leap year) that, for the first
year of employment, commences on the Employee's date of hiring and that,
for any subsequent year, commences on an anniversary of that hiring
date. The Committee shall make a determination as to whether
any partial year of employment shall be counted as a Year of
Service.
|
2.4
|
Termination
of Participation and/or Deferrals
. If the Committee
determines in good faith that a Participant no longer qualifies as a
member of a select group of management or highly compensated employees, as
membership in such group is determined in accordance with Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA, the Committee shall have the right, in
its sole discretion, to (i) terminate any deferral election the
Participant has made for the remainder of the Plan Year in which the
Participant's membership status changes (for elections relating to period
prior to January 1, 2005), (ii) prevent the Participant from making future
deferral elections and/or (iii) immediately distribute the Participant's
then vested Account Balance as a Termination Benefit and terminate the
Participant's participation in the
Plan.
|
4.1
|
Short-Term
Payout
. In connection with each election to defer an
Annual Deferral Amount, a Participant may irrevocably elect to receive a
future “Short-Term Payout” from the Plan with respect to all or a portion
of such Annual Deferral Amount. Subject to the Deduction
Limitation, the Short-Term Payout shall be a lump sum payment in an amount
that is equal to the portion of the Annual Deferral Amount the Participant
elected to have distributed as a Short-Term Payout plus amounts credited
or debited in the manner provided in the Plan on that amount, determined
at the time that the Short-Term Payout becomes payable. Subject
to the Deduction Limitation and the other terms and conditions of this
Plan, each Short-Term Payout elected shall be paid out during a 60 day
period commencing immediately after the first day of any Plan Year
designated by the Participant. The Plan Year designated by the
Participant must be at least two Plan Years after the Plan Year in which
the Annual Deferral Amount is actually deferred. By way of
example, if a two year Short-Term Payout is elected for Annual Deferral
Amounts that are deferred in the Plan Year commencing January 1, 2002, the
two year Short-Term Payout would become payable during a 60 day period
commencing January 1, 2005. With respect to each Short-Term
Payout, the Participant may change his or her election one time only to an
allowable alternative payout date by submitting a new Election Form to the
Committee, provided that (i) any such Election Form is submitted at least
13 months prior to the Participant's original distribution date, (ii) the
new distribution date being selected is later than the original
distribution date, and (iii) the Election Form is accepted by the
Committee in its sole discretion.
|
4.2
|
Other
Benefits Take Precedence Over Short-Term Payout
. Should
an event occur that triggers a benefit under Article 5, 6, 7 or 8, any
Annual Deferral Amount, plus amounts credited or debited thereon, that is
subject to a Short-Term Payout election under Section 4.1 shall not be
paid in accordance with Section 4.1 but shall be paid in accordance with
the other applicable Article.
|
4.3
|
Withdrawal
Payout/Suspensions for Unforeseeable Financial
Emergencies
. If the Participant experiences an
Unforeseeable Financial Emergency, the Participant may petition the
Committee to (i) suspend any deferrals required to be made by a
Participant (provided, however, that this clause (i) shall not be
applicable after December 31, 2004) and/or (ii) receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of
the Participant's vested Account Balance, excluding the portion of the
Account Balance attributable to the Stock Option Gain Account, calculated
as if such Participant were receiving a Termination Benefit, or the amount
reasonably needed to satisfy the Unforeseeable Financial
Emergency. If, subject to the sole discretion of the Committee,
the petition for a suspension and/or payout is approved, suspension shall
take effect upon the date of approval and any payout shall be made within
60 days of the date of approval. The payment of any amount
under this Section shall not be subject to the Deduction
Limitation.
|
4.4
|
Withdrawal
Election
. A Participant (or, after a Participant’s
death, his or her Beneficiary) may elect, at any time, to withdraw all of
his or her vested Account Balance, excluding the portion of the Account
Balance attributable to the Stock Option Gain Account, calculated as if
there had occurred a Termination of Employment as of the day of the
election, less a withdrawal penalty equal to 10% of such amount (the net
amount shall be referred to as the “Withdrawal Amount”). This
election can be made at any time, before or after Retirement, Long-Term
Disability, Short-Term Disability, death or Termination of Employment, and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. No partial
withdrawals of the Account Balance shall be allowed. The
Participant (or his or her Beneficiary) shall make this election by giving
the Committee advance written notice of the election in a form determined
from time to time by the Committee. The Participant (or his or
her Beneficiary) shall be paid the Withdrawal Amount within 60 days of his
or her election. Once the Withdrawal Amount is paid, the
Participant's participation in the Plan shall be suspended from making
deferral elections for the Plan Year immediately following the Plan Year
the distribution is made and for the first portion of the next Plan Year
after such full Plan Year of suspension equal to the remainder of the Plan
Year following the date the distribution is made. The payment
of this Withdrawal Amount shall not be subject to the Deduction
Limitation.
|
5.1
|
Retirement
Benefit
. Subject to the Deduction Limitation, a
Participant who Retires shall receive, as a Retirement Benefit, his or her
vested Account Balance.
|
5.2
|
Payment
of Retirement Benefit
. A Participant, in connection with
his or her commencement of participation in the Plan, shall elect on an
Election Form to receive the Retirement Benefit in a lump sum or pursuant
to an Annual Installment Method for between 2 and 20 years. At
any time, either before a Participant has begun receiving Retirement
Benefit payments or during the annual installment payment period, a
Participant may elect to shorten or lengthen the Retirement Benefit
payment period to any allowable alternative payout period by submitting a
new Election Form to the Committee. The Election Form must be
accepted by the Committee in its sole discretion and shall be effective
solely with respect to those payments that are due and payable at least 13
months from the date the Election Form is tendered to the
Committee. An allowable alternative payout period shall include
a lump sum payment or annual installment payments; provided, however, in
no event shall a Participant be allowed to select an annual installment
payment period that exceeds 20 years, reduced by the number of annual
installment payments already received by the Participant. Upon
the Committee’s acceptance of the new Election Form, the Participant’s
remaining unpaid vested Account Balance shall be annuitized over the newly
selected payout period. The Election Form most recently
accepted by the Committee shall govern the payout of the Retirement
Benefit. If a Participant does not make any election with
respect to the payment of the Retirement Benefit, then such benefit shall
be payable in a lump sum. The lump sum payment shall be made,
or installment payments shall commence, no later than 60 days after the
last day of the Plan Year in which the Participant Retires. Any
payment made shall be subject to the Deduction
Limitation.
|
5.3
|
Death
Prior to Completion of Retirement Benefit
. If a
Participant dies after Retirement but before the Retirement Benefit is
paid in full, the Participant's unpaid Retirement Benefit payments shall
continue and shall be paid to the Participant's Beneficiary (a) over the
remaining number of years and in the same amounts as that benefit would
have been paid to the Participant had the Participant survived, or (b) in
a lump sum, if requested by the Beneficiary and allowed in the sole
discretion of the Committee, that is equal to the Participant's unpaid
remaining vested Account Balance. The lump sum payment shall be made, or
installment payments shall commence, no later than 60 days after the last
day of the Plan Year in which the Committee is provided with proof that is
satisfactory to the Committee of the Participant's death. Any
payment made shall be subject to the Deduction
Limitation.
|
6.1
|
Pre-Retirement
Survivor Benefit
. Subject to the Deduction Limitation,
the Participant's Beneficiary shall receive a Pre-Retirement Survivor
Benefit equal to the Participant's vested Account Balance if the
Participant dies before he or she Retires, experiences a Termination of
Employment or suffers a Long-Term
Disability.
|
6.2
|
Payment
of Pre-Retirement Survivor Benefit
. If the Participant
was eligible for Retirement at the time of his or her death, the
Pre-Retirement Survivor Benefit shall be paid to the Participant’s
Beneficiary (a) over the number of years and in the same amounts as the
Retirement Benefit would have been paid to the Participant had the
Participant survived and Retired, or (b) in a lump sum, if requested by
the Beneficiary and allowed in the sole discretion of the
Committee. If the Participant was not eligible for Retirement
at the time of his or her death and the Participant’s vested Account
Balance at the time of his or her death is $100,000 or less, the
Pre-Retirement Survivor Benefit shall be paid in a lump sum. If
the Participant was not eligible for Retirement at the time of his or her
death and the Participant’s vested Account Balance at such time is greater
than $100,000, the Pre-Retirement Survivor Benefit shall be paid to the
Participant's Beneficiary in the form selected by the Committee, in its
sole discretion, which may be either (a) a lump sum or (b) an Annual
Installment Method of 3 years. The lump sum payment shall be
made, or installment payments shall commence, no later than 60 days after
the last day of the Plan Year in which the Committee is provided with
proof that is satisfactory to the Committee of the Participant's
death. Any payment made shall be subject to the Deduction
Limitation.
|
7.1
|
Termination
Benefit
. Subject to the Deduction Limitation, the
Participant shall receive a Termination Benefit, which shall be equal to
the Participant's vested Account Balance if a Participant experiences a
Termination of Employment prior to his or her Retirement, death or
Long-Term Disability.
|
7.2
|
Payment
of Termination Benefit
. If the Participant’s vested
Account Balance at the time of his or her Termination of Employment is
$100,000 or less, payment of his or her Termination Benefit shall be paid
in a lump sum. If his or her vested Account Balance at such
time is greater than $100,000, the Committee, in its sole discretion, may
cause the Termination Benefit to be paid (a) in a lump sum, or (b)
pursuant to an Annual Installment Method of 3 years. The lump
sum payment shall be made, or installment payments shall commence, no
later than 60 days after the last day of the Plan Year in which the
Participant experiences the Termination of Employment. Any
payment made shall be subject to the Deduction
Limitation.
|
7.3
|
Death
Prior to Completion of Termination Benefit
. If a
Participant dies after Termination of Employment but before the
Termination Benefit is paid in full, the Participant's unpaid Termination
Benefit payments shall continue and shall be paid to the Participant's
Beneficiary (a) over the remaining number of years and in the same amounts
as that benefit would have been paid to the Participant had the
Participant survived, or (b) in a lump sum, if requested by the
Beneficiary and allowed in the sole discretion of the Committee, that is
equal to the Participant's unpaid remaining vested Account Balance. The
lump sum payment shall be made, or installment payments shall commence, no
later than 60 days after the last day of the Plan Year in which the
Committee is provided with proof that is satisfactory to the Committee of
the Participant's death. Any payment made shall be subject to
the Deduction Limitation.
|
8.1
|
Disability
.
|
|
(a)
|
Continued
Deferral.
If a Participant is determined by the
Committee to be both (i) suffering from a Short-Term Disability and (ii)
receiving 100% of his or her Base Annual Salary during the period of such
Short-Term Disability, then the Participant’s Annual Deferral Amount shall
continue to be withheld during such period of Short-Term Disability in
accordance with Section 3.2.
|
|
(b)
|
Waiver
of Deferral
. If a Participant is determined by the
Committee to be both (i) suffering from a Short-Term Disability and, (ii)
receiving less than 100% of his or her Base Annual Salary during the
period of such Short-Term Disability, then such Participant shall be
excused from (a) fulfilling that portion of the Annual Deferral Amount
commitment that would otherwise have been withheld from a Participant's
Base Annual Salary, Annual Bonus and Directors Fees for the Plan Year
during which the Participant first suffers a Short-Term Disability and (b)
fulfilling any existing unexercised Eligible Stock Option
commitments. During the period of Short-Term Disability, the
Participant shall not be allowed to make any additional deferral
elections, but will continue to be considered a Participant for all other
purposes of this Plan.
|
|
(c)
|
Deferral
Following Disability
. If a Participant (i) returns to
employment with an Employer after a Short-Term Disability ceases, and (ii)
payment of 100% of his or her Base Annual Salary recommences, the
Participant may elect to defer an Annual Deferral Amount for the Plan Year
in which both (i) and (ii) occur and for every Plan Year thereafter while
a Participant in the Plan; provided such deferral elections are otherwise
allowed and an Election Form is delivered to and accepted by the Committee
for each such election in accordance with Section 3.2
above.
|
8.2
|
Disability
Benefit
. A Participant suffering a Long-Term Disability
shall be deemed to have experienced a Termination of Employment, or in the
case of a Participant who is eligible to Retire, to have Retired, on the
date on which such Participant is determined by the Committee to be
suffering a Long-Term Disability. The Participant shall receive
a Disability Benefit equal to his or her vested Account Balance at the
time of the Committee’s determination; provided, however, that should the
Participant otherwise have been eligible to Retire, he or she shall be
paid in accordance with Article 5. If the Participant’s vested
Account Balance at the time of the Committee’s determination is $100,000
or less, payment of the Disability Benefit will be made in a lump
sum. If the Participant’s vested Account Balance at the time of
the Committee’s determination is greater than $100,000, the Committee, in
its sole discretion, may cause the Disability Benefit to be paid in a lump
sum or pursuant to an Annual Installment Method of 3 years. The
lump sum payment shall be made, or installment payments shall commence,
within 60 days after the last day of the Plan Year in which the Committee
determines that the Participant has suffered a Long-Term
Disability. Any payment made shall be subject to the Deduction
Limitation.
|
8.3
|
Death
Prior to Completion of Disability Benefit
. If a
Participant dies after his or her Long-Term Disability but before the
Disability Benefit is paid in full, the Participant's unpaid Disability
Benefit payments shall continue and shall be paid to the Participant's
Beneficiary (a) over the remaining number of years and in the same amounts
as that benefit would have been paid to the Participant had the
Participant survived, or (b) in a lump sum, if requested by the
Beneficiary and allowed in the sole discretion of the Committee, that is
equal to the Participant's unpaid remaining vested Account Balance. The
lump sum payment shall be made, or installment payments shall commence, no
later than 60 days after the last day of the Plan Year in which the
Committee is provided with proof that is satisfactory to the Committee of
the Participant's death. Any payment made shall be subject to
the Deduction Limitation.
|
11.1
|
Termination
. Although
each Employer anticipates that it will continue the Plan for an indefinite
period of time, there is no guarantee that any Employer will continue the
Plan or will not terminate the Plan at any time in the
future. Accordingly, each Employer reserves the right to
discontinue its sponsorship of the Plan and/or to terminate the Plan at
any time with respect to any or all of its participating Employees and
Directors, by action of its board of directors. Upon the
termination of the Plan with respect to any Employer, the Plan Agreements
of the affected Participants who are employed by that Employer, or in the
service of that Employer as Directors, shall terminate and their vested
Account Balances, determined (i) as if they had experienced a Termination
of Employment on the date of Plan termination; or (ii) if Plan termination
occurs after the date upon which a Participant was eligible to Retire,
then with respect to that Participant as if he or she had Retired on the
date of Plan termination. Such benefits shall be paid to the
Participants as follows: (i) prior to a Change in Control, if the Plan is
terminated with respect to all of its Participants, an Employer shall have
the right, in its sole discretion, and notwithstanding any elections made
by the Participant, to pay such benefits in a lump sum or pursuant to an
Annual Installment Method of up to 5 years, with amounts credited and
debited during the installment period as provided herein; or (ii) prior to
a Change in Control, if the Plan is terminated with respect to less than
all of its Participants, an Employer shall be required to pay such
benefits in a lump sum; or (iii) after a Change in Control, if the Plan is
terminated with respect to some or all of its Participants, the Employer
shall be required to pay such benefits in a lump sum within 60 days of
termination of the Plan. The termination of the Plan shall not
adversely affect any Participant or Beneficiary who has become entitled to
the payment of any benefits under the Plan as of the date of termination;
provided however, that the Employer shall have the right to accelerate
installment payments without a premium or prepayment penalty by paying the
vested Account Balance in a lump sum or pursuant to an Annual Installment
Method using fewer years (provided that the present value of all payments
that will have been received by a Participant at any given point of time
under the different payment schedule shall equal or exceed the present
value of all payments that would have been received at that point in time
under the original payment
schedule).
|
11.2
|
Amendment
. Any
Employer may, at any time, amend or modify the Plan in whole or in part
with respect to that Employer by the action of its board of directors;
provided, however, that: (i) no amendment or modification shall be
effective to decrease or restrict the value of a Participant's vested
Account Balance in existence at the time the amendment or modification is
made, calculated as if the Participant had experienced a Termination of
Employment as of the effective date of the amendment or modification or,
if the amendment or modification occurs after the date upon which the
Participant was eligible to Retire, the Participant had Retired as of the
effective date of the amendment or modification, and (ii) no amendment or
modification of this Section 12.2 or Section 13.2 of the Plan shall be
effective. The amendment or modification of the Plan shall not
affect any Participant or Beneficiary who has become entitled to the
payment of benefits under the Plan as of the date of the amendment or
modification; provided, however, that the Employer shall have the right to
accelerate installment payments by paying the vested Account Balance in a
lump sum or pursuant to an Annual Installment Method using fewer years
(provided that the present value of all payments that will have been
received by a Participant at any given point of time under the different
payment schedule shall equal or exceed the present value of all payments
that would have been received at that point in time under the original
payment schedule).
|
11.3
|
Plan
Agreement
. Despite the provisions of Sections 12.1 and
12.2 above, if a Participant's Plan Agreement contains benefits or
limitations that are not in this Plan document, the Employer may only
amend or terminate such provisions with the consent of the
Participant.
|
11.4
|
Effect
of Payment
. The full payment of the Participant’s vested
Account Balance in accordance with the applicable provisions of the Plan
shall completely discharge all obligations to a Participant and his or her
designated Beneficiaries under this Plan, and the Participant's Plan
Agreement shall terminate.
|
16.15
|
Court
Order
. The Committee is authorized to make any payments
directed by court order in any action in which the Plan or the Committee
has been named as a party. In addition, if a court determines
that a spouse or former spouse of a Participant has an interest in the
Participant’s benefits under the Plan in connection with a property
settlement or otherwise, the Committee, in its sole discretion, shall have
the right, notwithstanding any election made by a Participant, to
immediately distribute the spouse's or former spouse's interest in the
Participant’s benefits under the Plan to that spouse or former
spouse.
|
16.16
|
Distribution
in the Event of Taxation
.
|
|
(a)
|
In
General
. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the Participant
prior to receipt, a Participant may petition the Committee before a Change
in Control, or the trustee of the Trust after a Change in Control, for a
distribution of that portion of his or her benefit that has become
taxable. Upon the grant of such a petition, which grant shall
not be unreasonably withheld (and, after a Change in Control, shall be
granted), a Participant's Employer shall distribute to the Participant
immediately available funds in an amount equal to the taxable portion of
his or her benefit (which amount shall not exceed a Participant's unpaid
vested Account Balance under the Plan). If the petition is
granted, the tax liability distribution shall be made within 90 days of
the date when the Participant's petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under this
Plan.
|
|
(b)
|
Trust
. If
the Trust terminates in accordance with its terms and benefits are
distributed from the Trust to a Participant in accordance therewith, the
Participant's benefits under this Plan shall be reduced to the extent of
such distributions.
|
3.
|
Compensation
and Other Benefits
.
|
4.
|
Confidentiality,
Nonsolicitation and
Noncompete
.
|
5.
|
Termination
and Severance
.
|
9.
|
Excise
Tax Limitation
.
|
9.3
|
Any
Excise Tax payable hereunder shall be paid by the
Executive.
|
|
(i)
|
if
to the Company, to:
|
|
(ii)
|
if
to the Executive, to:
|
TRUSTMARK
CORPORATION
|
|||
By:
|
/s/ Daniel A. Grafton | ||
Daniel A. Grafton
|
|||
Chairman of the Human Resources
Committee
|
EXECUTIVE | |||
/s/ Richard G. Hickson | |||
Richard G. Hickson
|
|
(i)
|
if
to the Company, to:
|
|
(ii)
|
if
to the Executive, to:
|
TRUSTMARK
CORPORATION
|
EXECUTIVE
|
|||
By:
|
/s/ Richard G. Hickson | /s/ Gerard R. Host | ||
Richard
G. Hickson
|
Gerard R. Host
|
|||
Chairman
and Chief Executive Officer
|
|
(i)
|
if
to the Company, to:
|
|
(ii)
|
if
to the Executive, to:
|
TRUSTMARK
CORPORATION
|
EXECUTIVE
|
|||
By:
|
/s/ Richard G. Hickson | /s/ Harry M. Walker | ||
Richard
G. Hickson
|
Harry M.
Walker
|
|||
Chairman
and Chief Executive Officer
|
/s/ Richard G.
Hickson
|
/s/ Louis E.
Greer
|
Richard
G. Hickson
|
Louis
E. Greer
|
Chairman
and
|
Treasurer
and
|
Chief
Executive Officer
|
Principal
Financial Officer
|
2005
|
||||
Net
income, as reported
|
$ | 102,951 | ||
Add: Total
stock-based employee compensation expense included in reported net income,
net of related tax effects
|
1,016 | |||
Deduct:
Total stock-based employee compensation expense determined under fair
value based method for all awards, net of related tax
effects
|
(1,631 | ) | ||
Pro
forma net income
|
$ | 102,336 | ||
Earnings
per share:
|
||||
As
reported
|
||||
Basic
|
$ | 1.82 | ||
Diluted
|
1.81 | |||
Pro
forma
|
||||
Basic
|
$ | 1.81 | ||
Diluted
|
1.80 |
As
Originally
|
As
Currently
|
|||||||||||
Reported
|
Adjustments
|
Reported
|
||||||||||
Year
Ended December 31, 2006
|
||||||||||||
Net
cash provided by operating activities
|
$ | 177,156 | $ | (25,965 | ) | $ | 151,191 | |||||
Net
cash provided by investing activities
|
161,370 | (21,579 | ) | 139,791 | ||||||||
Net
cash used in financing activities
|
(334,373 | ) | 47,544 | (286,829 | ) | |||||||
Increase
in cash and cash equivalents
|
4,153 | - | 4,153 | |||||||||
Cash
and cash equivalents at beginning of year
|
387,930 | - | 387,930 | |||||||||
Cash
and cash equivalents at end of year
|
$ | 392,083 | $ | - | $ | 392,083 | ||||||
Year
Ended December 31, 2005
|
||||||||||||
Net
cash provided by operating activities
|
$ | 84,710 | $ | 72,345 | $ | 157,055 | ||||||
Net
cash used in investing activities
|
(216,135 | ) | (72,345 | ) | (288,480 | ) | ||||||
Net
cash provided by financing activities
|
176,230 | - | 176,230 | |||||||||
Increase
in cash and cash equivalents
|
44,805 | - | 44,805 | |||||||||
Cash
and cash equivalents at beginning of year
|
343,125 | - | 343,125 | |||||||||
Cash
and cash equivalents at end of year
|
$ | 387,930 | $ | - | $ | 387,930 |
Years
Ended December 31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Income
taxes paid
|
$ | 53,883 | $ | 56,309 | $ | 55,210 | ||||||
Interest
expense paid on deposits and borrowings
|
243,562 | 196,080 | 129,984 | |||||||||
Non-cash
transfers from loans to foreclosed properties
|
8,387 | 1,969 | 2,938 | |||||||||
Assets
acquired in business combinations
|
- | 647,550 | - | |||||||||
Liabilities
assumed in business combinations
|
- | 606,696 | - | |||||||||
Transfer
of long-term FHLB advances to short-term
|
- | - | 175,000 |
Years
Ended December 31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Basic
shares
|
57,709 | 56,632 | 56,610 | |||||||||
Dilutive
shares
|
77 | 465 | 133 | |||||||||
Diluted
shares
|
57,786 | 57,097 | 56,743 |
Securities
Available for Sale
|
Securities
Held to Maturity
|
|||||||||||||||||||||||||||||||
Gross
|
Gross
|
Estimated
|
Gross
|
Gross
|
Estimated
|
|||||||||||||||||||||||||||
Amortized
|
Unrealized
|
Unrealized
|
Fair
|
Amortized
|
Unrealized
|
Unrealized
|
Fair
|
|||||||||||||||||||||||||
2007
|
Cost
|
Gains
|
(Losses)
|
Value
|
Cost
|
Gains
|
(Losses)
|
Value
|
||||||||||||||||||||||||
U.S.
Treasury and other U.S. Government agencies
|
$ | 8,005 | $ | 18 | $ | - | $ | 8,023 | $ | - | $ | - | $ | - | $ | - | ||||||||||||||||
Obligations
of states and political subdivisions
|
45,704 | 363 | (48 | ) | 46,019 | 114,497 | 2,633 | (263 | ) | 116,867 | ||||||||||||||||||||||
Mortgage-backed
securities
|
318,815 | 723 | (1,771 | ) | 317,767 | 160,473 | 132 | (971 | ) | 159,634 | ||||||||||||||||||||||
Corporate
debt
|
70,971 | 62 | (497 | ) | 70,536 | - | - | - | - | |||||||||||||||||||||||
Other
securities
|
- | - | - | - | 126 | 4 | - | 130 | ||||||||||||||||||||||||
Total
|
$ | 443,495 | $ | 1,166 | $ | (2,316 | ) | $ | 442,345 | $ | 275,096 | $ | 2,769 | $ | (1,234 | ) | $ | 276,631 | ||||||||||||||
2006
|
||||||||||||||||||||||||||||||||
U.S.
Treasury and other U.S. Government agencies
|
$ | 11,444 | $ | 3 | $ | - | $ | 11,447 | $ | - | $ | - | $ | - | $ | - | ||||||||||||||||
Obligations
of states and political subdivisions
|
56,839 | 624 | (238 | ) | 57,225 | 129,879 | 3,196 | (545 | ) | 132,530 | ||||||||||||||||||||||
Mortgage-backed
securities
|
607,651 | 468 | (10,027 | ) | 598,092 | 162,245 | 1 | (3,994 | ) | 158,252 | ||||||||||||||||||||||
Corporate
debt
|
93,735 | - | (2,227 | ) | 91,508 | - | - | - | - | |||||||||||||||||||||||
Other
securities
|
- | - | - | - | 119 | 4 | - | 123 | ||||||||||||||||||||||||
Total
|
$ | 769,669 | $ | 1,095 | $ | (12,492 | ) | $ | 758,272 | $ | 292,243 | $ | 3,201 | $ | (4,539 | ) | $ | 290,905 |
Less
than 12 Months
|
12
Months or More
|
Total
|
||||||||||||||||||||||
Estimated
|
Unrealized
|
Estimated
|
Unrealized
|
Estimated
|
Unrealized
|
|||||||||||||||||||
Fair
Value
|
Losses
|
Fair
Value
|
Losses
|
Fair
Value
|
Losses
|
|||||||||||||||||||
2007
|
||||||||||||||||||||||||
U.S.
Treasury and other U.S. Government agencies
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | ||||||||||||
Obligations
of states and political subdivisions
|
206 | 1 | 21,629 | 310 | 21,835 | 311 | ||||||||||||||||||
Mortgage-backed
securities
|
- | - | 403,990 | 2,742 | 403,990 | 2,742 | ||||||||||||||||||
Corporate
debt
|
- | - | 58,103 | 497 | 58,103 | 497 | ||||||||||||||||||
Other
securities
|
- | - | - | - | - | - | ||||||||||||||||||
Total
|
$ | 206 | $ | 1 | $ | 483,722 | $ | 3,549 | $ | 483,928 | $ | 3,550 | ||||||||||||
2006
|
||||||||||||||||||||||||
U.S.
Treasury and other U.S. Government agencies
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | ||||||||||||
Obligations
of states and political subdivisions
|
3,660 | 113 | 32,246 | 670 | 35,906 | 783 | ||||||||||||||||||
Mortgage-backed
securities
|
1,002 | 10 | 738,968 | 14,011 | 739,970 | 14,021 | ||||||||||||||||||
Corporate
debt
|
- | - | 91,508 | 2,227 | 91,508 | 2,227 | ||||||||||||||||||
Other
securities
|
- | - | - | - | - | - | ||||||||||||||||||
Total
|
$ | 4,662 | $ | 123 | $ | 862,722 | $ | 16,908 | $ | 867,384 | $ | 17,031 |
Securities
|
Securities
|
|||||||||||||||
Available
for Sale
|
Held
to Maturity
|
|||||||||||||||
Amortized
|
Estimated
|
Amortized
|
Estimated
|
|||||||||||||
Cost
|
Fair
Value
|
Cost
|
Fair
Value
|
|||||||||||||
Due
in one year or less
|
$ | 56,046 | $ | 56,025 | $ | 16,925 | $ | 17,066 | ||||||||
Due
after one year through five years
|
57,095 | 56,797 | 36,727 | 37,511 | ||||||||||||
Due
after five years through ten years
|
10,285 | 10,453 | 51,609 | 53,151 | ||||||||||||
Due
after ten years
|
1,254 | 1,303 | 9,362 | 9,269 | ||||||||||||
124,680 | 124,578 | 114,623 | 116,997 | |||||||||||||
Mortgage-backed
securities
|
318,815 | 317,767 | 160,473 | 159,634 | ||||||||||||
Total
|
$ | 443,495 | $ | 442,345 | $ | 275,096 | $ | 276,631 |
At
December 31, 2007 and 2006, loans consisted of the following ($ in
thousands):
|
||||||||
2007
|
2006
|
|||||||
Real
estate loans:
|
||||||||
Construction,
development and other land loans
|
$ | 1,194,940 | $ | 896,254 | ||||
Secured
by 1- 4 family residential properties
|
1,694,757 | 1,842,886 | ||||||
Secured
by nonfarm, nonresidential properties
|
1,325,379 | 1,326,658 | ||||||
Other
|
167,610 | 148,921 | ||||||
Loans
to finance agricultural production and other loans to
farmers
|
23,692 | 23,938 | ||||||
Commercial
and industrial loans
|
1,283,014 | 1,106,460 | ||||||
Consumer
loans
|
1,087,337 | 934,261 | ||||||
Obligations
of states and political subdivisions
|
228,330 | 233,666 | ||||||
Other
loans
|
35,733 | 50,109 | ||||||
Loans
|
7,040,792 | 6,563,153 | ||||||
Less
allowance for loan losses
|
79,851 | 72,098 | ||||||
Net
loans
|
$ | 6,960,941 | $ | 6,491,055 |
At
December 31, 2007 and 2006, premises and equipment are summarized as
follows ($ in thousands):
|
||||||||
2007
|
2006
|
|||||||
Land
|
$ | 39,822 | $ | 34,342 | ||||
Buildings
and leasehold improvements
|
144,558 | 133,477 | ||||||
Furniture
and equipment
|
131,877 | 125,781 | ||||||
Total
cost of premises and equipment
|
316,257 | 293,600 | ||||||
Less
accumulated depreciation and amortization
|
164,577 | 159,228 | ||||||
Premises
and equipment, net
|
$ | 151,680 | $ | 134,372 |
Mortgage
Servicing Rights
|
||||||||
The
activity in MSR is detailed in the table below ($ in
thousands):
|
||||||||
2007
|
2006
|
|||||||
Balance
at beginning of period
|
$ | 69,272 | $ | 58,424 | ||||
Cumulative-effect
adjustment - change in accounting for MSR
|
- | 1,373 | ||||||
Additions:
|
||||||||
Origination
of servicing assets
|
18,880 | 19,233 | ||||||
Disposals
|
(2,157 | ) | (2,556 | ) | ||||
Change
in fair value:
|
||||||||
Due
to market changes
|
(9,460 | ) | 3,122 | |||||
Due
to runoff
|
(9,343 | ) | (9,858 | ) | ||||
Due
to other
|
- | (466 | ) | |||||
Balance
at end of period
|
$ | 67,192 | $ | 69,272 |
General
|
||||||||||||
Banking
|
Insurance
|
Total
|
||||||||||
Balance
as of January 1, 2005
|
$ | 92,740 | $ | 44,485 | $ | 137,225 | ||||||
Purchase
accounting adjustments
|
187 | (44 | ) | 143 | ||||||||
Balance
as of December 31, 2005
|
92,927 | 44,441 | 137,368 | |||||||||
Additions
from business combination
|
152,995 | - | 152,995 | |||||||||
Balance
as of December 31, 2006
|
245,922 | 44,441 | 290,363 | |||||||||
Purchase
accounting adjustments
|
814 | - | 814 | |||||||||
Balance
as of December 31, 2007
|
$ | 246,736 | $ | 44,441 | $ | 291,177 |
2007
|
2006
|
|||||||||||||||||||||||
Gross
Carrying
|
Accumulated
|
Net
Carrying
|
Gross
Carrying
|
Accumulated
|
Net
Carrying
|
|||||||||||||||||||
Amount
|
Amortization
|
Amount
|
Amount
|
Amortization
|
Amount
|
|||||||||||||||||||
Core
deposit intangibles
|
$ | 44,408 | $ | 25,437 | $ | 18,971 | $ | 44,408 | $ | 21,869 | $ | 22,539 | ||||||||||||
Insurance
intangibles
|
11,693 | 4,212 | 7,481 | 11,693 | 3,051 | 8,642 | ||||||||||||||||||
Banking
charters
|
1,325 | 281 | 1,044 | 1,325 | 215 | 1,110 | ||||||||||||||||||
Borrower
relationship intangible
|
690 | 84 | 606 | 690 | 21 | 669 | ||||||||||||||||||
Total
|
$ | 58,116 | $ | 30,014 | $ | 28,102 | $ | 58,116 | $ | 25,156 | $ | 32,960 |
At
December 31, 2007 and 2006, deposits consisted of the following ($ in
thousands):
|
||||||||
2007
|
2006
|
|||||||
Noninterest-bearing
demand deposits
|
$ | 1,477,171 | $ | 1,574,769 | ||||
Interest-bearing
demand
|
1,210,817 | 1,139,238 | ||||||
Savings
|
1,577,198 | 1,664,804 | ||||||
Time
|
2,604,086 | 2,597,353 | ||||||
Total
|
$ | 6,869,272 | $ | 6,976,164 |
2007
|
2006
|
|||||||
FHLB
advances
|
$ | 375,000 | $ | 202,500 | ||||
Serviced
GNMA loans eligible for repurchase
|
17,886 | 13,463 | ||||||
Treasury
tax and loan note option account
|
50,000 | 19,613 | ||||||
Line
of credit payable
|
7,000 | 11,000 | ||||||
Other
|
24,468 | 24,491 | ||||||
Total
|
$ | 474,354 | $ | 271,067 |
The
income tax provision included in the statements of income is as follows ($
in thousands):
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Current
|
||||||||||||
Federal
|
$ | 51,729 | $ | 46,503 | $ | 52,142 | ||||||
State
|
8,499 | 7,433 | 7,764 | |||||||||
Deferred
|
||||||||||||
Federal
|
(5,067 | ) | 6,919 | (5,309 | ) | |||||||
State
|
(759 | ) | 1,029 | (817 | ) | |||||||
Income
tax provision
|
$ | 54,402 | $ | 61,884 | $ | 53,780 |
2007
|
2006
|
2005
|
||||||||||
Income
tax computed at statutory tax rate
|
$ | 57,049 | $ | 63,405 | $ | 54,856 | ||||||
Tax
exempt interest
|
(5,027 | ) | (5,272 | ) | (5,118 | ) | ||||||
Nondeductible
interest expense
|
679 | 552 | 371 | |||||||||
State
income taxes, net
|
5,031 | 5,500 | 4,515 | |||||||||
Income
tax credits
|
(2,185 | ) | (1,847 | ) | (1,679 | ) | ||||||
Other
|
(1,145 | ) | (454 | ) | 835 | |||||||
Income
tax provision
|
$ | 54,402 | $ | 61,884 | $ | 53,780 |
2007
|
2006
|
|||||||
Deferred
tax assets
|
||||||||
Allowance
for loan losses
|
$ | 30,543 | $ | 27,376 | ||||
Pension
and other postretirement benefits plans
|
16,024 | 14,274 | ||||||
Unrealized
losses on securities available for sale
|
440 | 4,359 | ||||||
Deferred
compensation
|
4,604 | 4,098 | ||||||
Stock-based
compensation
|
3,416 | 2,126 | ||||||
Other
|
6,236 | 5,840 | ||||||
Gross
deferred tax asset
|
61,263 | 58,073 | ||||||
Deferred
tax liabilities
|
||||||||
Goodwill
and other identifiable intangibles
|
15,279 | 15,536 | ||||||
Mortgage
servicing rights
|
8,431 | 9,496 | ||||||
Premises
and equipment
|
10,730 | 8,815 | ||||||
Securities
|
4,956 | 4,693 | ||||||
Other
|
2,412 | 2,192 | ||||||
Gross
deferred tax liability
|
41,808 | 40,732 | ||||||
Net
deferred tax asset
|
$ | 19,455 | $ | 17,341 |
Balance
at January 1, 2007
|
$ | 1,032 | ||
Increases
due to tax positions taken during the current year
|
279 | |||
Decreases
due to tax positions taken during a prior year
|
(43 | ) | ||
Decreases
due to settlements with taxing authorities during the current
year
|
- | |||
Decreases
due to the lapse of applicable statute of limitations during the current
year
|
(254 | ) | ||
Balance
at December 31, 2007
|
$ | 1,014 |
December
31,
|
||||||||
2007
|
2006
|
|||||||
Change
in benefit obligation
|
||||||||
Benefit
obligation, beginning of year
|
$ | 82,340 | $ | 80,072 | ||||
Service
cost
|
1,306 | 2,404 | ||||||
Interest
cost
|
4,697 | 4,432 | ||||||
Actuarial
loss
|
1,981 | 2,519 | ||||||
Benefits
paid
|
(5,456 | ) | (5,776 | ) | ||||
Prior
service cost due to amendment
|
- | (1,311 | ) | |||||
Benefit
obligation, end of year
|
$ | 84,868 | $ | 82,340 | ||||
Change
in plan assets
|
||||||||
Fair
value of plan assets, beginning of year
|
$ | 77,868 | $ | 72,436 | ||||
Actual
return on plan assets
|
6,990 | 11,208 | ||||||
Employer
contributions
|
- | - | ||||||
Benefit
payments
|
(5,456 | ) | (5,776 | ) | ||||
Fair
value of plan assets, end of year
|
$ | 79,402 | $ | 77,868 | ||||
Funded
status at end of year - net liability
|
$ | (5,466 | ) | $ | (4,472 | ) | ||
Amounts
recognized in accumulated other comprehensive loss
|
||||||||
Net
loss
|
$ | 16,936 | $ | 18,909 | ||||
Prior
service credits
|
(2,747 | ) | (3,257 | ) | ||||
Amounts
recognized
|
$ | 14,189 | $ | 15,652 |
Years
Ended December 31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Net
periodic benefit cost
|
||||||||||||
Service
cost
|
$ | 1,306 | $ | 2,404 | $ | 2,179 | ||||||
Interest
cost
|
4,697 | 4,432 | 4,269 | |||||||||
Expected
return on plan assets
|
(5,290 | ) | (5,238 | ) | (5,407 | ) | ||||||
Amortization
of prior service cost
|
(510 | ) | (376 | ) | (89 | ) | ||||||
Recognized
net actuarial loss
|
2,254 | 2,461 | 1,917 | |||||||||
Net
periodic benefit cost
|
$ | 2,457 | $ | 3,683 | $ | 2,869 | ||||||
Other
changes in plan assets and benefit obligations recognized in other
comprehensive income, before taxes
|
||||||||||||
Net
(gain) loss
|
$ | (1,973 | ) | $ | 18,909 | $ | - | |||||
Prior
service cost
|
- | (3,257 | ) | - | ||||||||
Amortization
of prior service cost
|
510 | - | - | |||||||||
Total
recognized in other comprehensive income
|
$ | (1,463 | ) | $ | 15,652 | $ | - | |||||
Total
recognized in net periodic benefit cost and other comprehensive
income
|
$ | 994 | $ | 19,335 | $ | 2,869 | ||||||
Weighted-average
assumptions as of end of year
|
||||||||||||
Discount
rate for benefit obligations
|
6.00 | % | 6.00 | % | 5.75 | % | ||||||
Discount
rate for net periodic benefit cost
|
6.00 | % | 5.75 | % | 6.00 | % | ||||||
Expected
long-term return on plan assets
|
8.00 | % | 8.00 | % | 8.00 | % | ||||||
Rate
of compensation increase
|
4.00 | % | 4.00 | % | 4.00 | % |
Trustmark's
pension plan weighted-average asset allocations at December 31, 2007 and
2006, by asset category are as follows:
|
||||||||
2007
|
2006
|
|||||||
Cash
and cash equivalents
|
2.0 | % | 3.6 | % | ||||
Fixed
income securities
|
14.9 | % | 16.8 | % | ||||
Equity
mutual funds
|
75.5 | % | 72.8 | % | ||||
Fixed
income hedge fund
|
7.6 | % | 6.8 | % | ||||
Total
|
100.0 | % | 100.0 | % |
December
31,
|
||||||||
2007
|
2006
|
|||||||
Change
in benefit obligation
|
||||||||
Benefit
obligation, beginning of year
|
$ | 31,013 | $ | 29,611 | ||||
Service
cost
|
1,296 | 1,599 | ||||||
Interest
cost
|
1,815 | 1,651 | ||||||
Actuarial
loss (gain)
|
1,949 | (504 | ) | |||||
Benefits
paid
|
(1,599 | ) | (1,344 | ) | ||||
Prior
service cost due to amendment
|
8 | - | ||||||
Benefit
obligation, end of year
|
$ | 34,482 | $ | 31,013 | ||||
Change
in plan assets
|
||||||||
Fair
value of plan assets, beginning of year
|
$ | - | $ | - | ||||
Actual
return on plan assets
|
- | - | ||||||
Employer
contributions
|
1,599 | 1,344 | ||||||
Benefit
payments
|
(1,599 | ) | (1,344 | ) | ||||
Fair
value of plan assets, end of year
|
$ | - | $ | - | ||||
Funded
status at end of year - net liability
|
$ | (34,482 | ) | $ | (31,013 | ) | ||
Amounts
recognized in accumulated other comprehensive loss
|
||||||||
Net
loss
|
$ | 6,352 | $ | 4,497 | ||||
Prior
service cost
|
1,710 | 1,841 | ||||||
Amounts
recognized
|
$ | 8,062 | $ | 6,338 |
Years
Ended December 31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Net
periodic benefit cost
|
||||||||||||
Service
cost
|
$ | 1,296 | $ | 1,599 | $ | 1,457 | ||||||
Interest
cost
|
1,815 | 1,651 | 1,575 | |||||||||
Amortization
of prior service cost
|
139 | 139 | 151 | |||||||||
Recognized
net actuarial loss
|
94 | 148 | 103 | |||||||||
Net
periodic benefit cost
|
$ | 3,344 | $ | 3,537 | $ | 3,286 | ||||||
Weighted-average
assumptions as of end of year
|
||||||||||||
Discount
rate for benefit obligations
|
6.00 | % | 6.00 | % | 5.75 | % | ||||||
Discount
rate for net periodic benefit cost
|
6.00 | % | 5.75 | % | 6.00 | % |
2008
|
$ | 1,546 | ||
2009
|
1,711 | |||
2010
|
2,131 | |||
2011
|
2,240 | |||
2012
|
2,329 | |||
2013
- 2017
|
14,214 |
2007
|
2006
|
2005
|
||||||||||||||||||||||
Average
|
Average
|
Average
|
||||||||||||||||||||||
Option
|
Option
|
Option
|
||||||||||||||||||||||
Options
|
Shares
|
Price
|
Shares
|
Price
|
Shares
|
Price
|
||||||||||||||||||
Outstanding,
beginning of year
|
1,996,035 | $ | 25.46 | 2,016,930 | $ | 24.44 | 1,842,993 | $ | 23.71 | |||||||||||||||
Granted
|
- | - | 272,700 | 31.55 | 336,450 | 28.28 | ||||||||||||||||||
Exercised
|
(17,575 | ) | 24.97 | (233,020 | ) | 22.89 | (98,288 | ) | 22.66 | |||||||||||||||
Forfeited
|
(24,100 | ) | 29.17 | (60,575 | ) | 28.67 | (64,225 | ) | 26.28 | |||||||||||||||
Outstanding,
end of year
|
1,954,360 | 25.42 | 1,996,035 | 25.46 | 2,016,930 | 24.44 | ||||||||||||||||||
Exercisable,
end of year
|
1,504,305 | 24.18 | 1,242,133 | 23.47 | 1,232,593 | 22.76 | ||||||||||||||||||
Aggregate
Intrinsic Value
|
||||||||||||||||||||||||
Outstanding,
end of year
|
$ | 2,951,605 | $ | 15,173,001 | $ | 6,609,765 | ||||||||||||||||||
Exercisable,
end of year
|
$ | 2,951,605 | $ | 11,920,289 | $ | 5,955,437 |
Options
Outstanding
|
Options
Exercisable
|
|||||||||||||||||||||||||
Weighted-
|
Weighted-
|
Weighted-
|
Weighted-
|
|||||||||||||||||||||||
Outstanding
|
Average
|
Average
|
Exercisable
|
Average
|
Average
|
|||||||||||||||||||||
Range
of
|
December
31,
|
Remaining
Years
|
Exercise
|
December
31,
|
Remaining
Years
|
Exercise
|
||||||||||||||||||||
Exercise
Prices
|
2007
|
To
Expiration
|
Price
|
2007
|
To
Expiration
|
Price
|
||||||||||||||||||||
$
16.17
- $19.41
|
179,050 |
2.4
|
$ | 18.06 | 179,050 |
2.4
|
$ | 18.06 | ||||||||||||||||||
$19.41
- $22.64
|
300,811 |
2.5
|
21.94 | 300,811 |
2.5
|
21.94 | ||||||||||||||||||||
$22.64
- $25.88
|
599,699 |
4.1
|
24.37 | 599,699 |
4.1
|
24.37 | ||||||||||||||||||||
$25.88
- $29.11
|
615,650 |
5.4
|
27.73 | 367,605 |
5.8
|
27.58 | ||||||||||||||||||||
$29.11
- $32.35
|
259,150 |
5.3
|
31.49 | 57,140 |
5.4
|
31.36 | ||||||||||||||||||||
1,954,360 |
4.3
|
25.42 | 1,504,305 |
4.0
|
24.18 |
2006
|
2005
|
|||||||
Fair
value of options
|
$ | 7.28 | $ | 6.54 | ||||
Risk-free
interest rate
|
5.01 | % | 4.11 | % | ||||
Expected
volatility
|
25.17 | % | 24.95 | % | ||||
Expected
dividend yield
|
2.79 | % | 3.03 | % | ||||
Expected
life (in years)
|
5 | 7 |
2007
|
2006
|
2005
|
||||||||||||||||||||||
Weighted-
|
Weighted-
|
Weighted-
|
||||||||||||||||||||||
Average
|
Average
|
Average
|
||||||||||||||||||||||
Grant-Date
|
Grant-Date
|
Grant-Date
|
||||||||||||||||||||||
Shares
|
Fair
Value
|
Shares
|
Fair
Value
|
Shares
|
Fair
Value
|
|||||||||||||||||||
Nonvested
shares, beginning of year
|
89,075 | $ | 28.27 | 26,325 | $ | 28.28 | - | $ | - | |||||||||||||||
Granted
|
75,250 | 30.13 | 67,000 | 28.25 | 26,325 | 28.28 | ||||||||||||||||||
Forfeited
|
(2,000 | ) | 28.90 | (4,250 | ) | 28.25 | - | - | ||||||||||||||||
Nonvested
shares, end of year
|
162,325 | 28.77 | 89,075 | 28.27 | 26,325 | 28.28 |
2007
|
2006
|
|||||||||||||||
Weighted-
|
Weighted-
|
|||||||||||||||
Average
|
Average
|
|||||||||||||||
Grant-Date
|
Grant-Date
|
|||||||||||||||
Shares
|
Fair
Value
|
Shares
|
Fair
Value
|
|||||||||||||
Nonvested
shares, beginning of year
|
61,035 | $ | 31.96 | - | $ | - | ||||||||||
Granted
|
37,500 | 29.03 | 61,035 | 31.96 | ||||||||||||
Forfeited
|
(48,316 | ) | 30.54 | - | - | |||||||||||
Nonvested
shares, end of year
|
50,219 | 30.38 | 61,035 | 31.96 |
2008
|
$ | 3,617 | ||
2009
|
3,266 | |||
2010
|
2,340 | |||
2011
|
1,590 | |||
2012
|
1,296 | |||
Thereafter
|
6,350 | |||
Total
|
$ | 18,459 |
Accumulated
|
||||||||||||
Other
|
||||||||||||
Before-Tax
|
Tax
|
Comprehensive
|
||||||||||
Amount
|
Effect
|
Loss
|
||||||||||
Balance,
January 1, 2005
|
$ | (6,369 | ) | $ | 2,417 | $ | (3,952 | ) | ||||
Unrealized
losses on available for sale securities:
|
||||||||||||
Unrealized
holding losses arising during period
|
(17,854 | ) | 6,829 | (11,025 | ) | |||||||
Less:
adjustment for net losses realized in net income
|
3,644 | (1,394 | ) | 2,250 | ||||||||
Minimum
liability adjustment-defined benefit plans
|
(947 | ) | 362 | (585 | ) | |||||||
Balance,
December 31, 2005
|
(21,526 | ) | 8,214 | (13,312 | ) | |||||||
Unrealized
gains on available for sale securities:
|
||||||||||||
Unrealized
holding gains arising during period
|
6,935 | (2,653 | ) | 4,282 | ||||||||
Less:
adjustment for net gains realized in net income
|
(1,922 | ) | 735 | (1,187 | ) | |||||||
Pension
and other postretirement benefit plans:
|
||||||||||||
Net
prior service costs arising during the period
|
1,415 | (541 | ) | 874 | ||||||||
Net
loss arising during the period
|
(18,257 | ) | 6,983 | (11,274 | ) | |||||||
Balance,
December 31, 2006
|
(33,355 | ) | 12,738 | (20,617 | ) | |||||||
Unrealized
gains on available for sale securities:
|
||||||||||||
Unrealized
holding gains arising during period
|
10,358 | (3,962 | ) | 6,396 | ||||||||
Less:
adjustment for net gains realized in net income
|
(112 | ) | 43 | (69 | ) | |||||||
Pension
and other postretirement benefit plans:
|
||||||||||||
Net
prior service credits arising during the period
|
(379 | ) | 145 | (234 | ) | |||||||
Net
gain arising during the period
|
118 | (45 | ) | 73 | ||||||||
Balance,
December 31, 2007
|
$ | (23,370 | ) | $ | 8,919 | $ | (14,451 | ) |
The
carrying amounts and estimated fair values of financial instruments at
December 31, 2007
and
2006, are as follows ($ in thousands):
|
||||||||||||||||
2007
|
2006
|
|||||||||||||||
Carrying
|
Estimated
|
Carrying
|
Estimated
|
|||||||||||||
Value
|
Fair
Value
|
Value
|
Fair
Value
|
|||||||||||||
Financial
Assets:
|
||||||||||||||||
Cash
and short-term investments
|
$ | 310,980 | $ | 310,980 | $ | 419,342 | $ | 419,342 | ||||||||
Securities
available for sale
|
442,345 | 442,345 | 758,272 | 758,272 | ||||||||||||
Securities
held to maturity
|
275,096 | 276,631 | 292,243 | 290,905 | ||||||||||||
Loans
held for sale
|
147,508 | 147,508 | 95,375 | 95,375 | ||||||||||||
Net
loans
|
6,960,941 | 6,990,354 | 6,491,055 | 6,444,956 | ||||||||||||
Financial
Liabilities:
|
||||||||||||||||
Deposits
|
6,869,272 | 6,876,805 | 6,976,164 | 6,996,737 | ||||||||||||
Short-term
liabilities
|
935,117 | 935,117 | 741,501 | 741,501 | ||||||||||||
Subordinated
notes
|
49,709 | 48,125 | 49,677 | 48,787 | ||||||||||||
Junior
subordinated debt securities
|
70,104 | 70,104 | 70,104 | 70,104 |
General
Banking
|
Insurance
|
Wealth
Mgt.
|
Admin.
|
|||||||||||||||||
Division
|
Division
|
Division
|
Division
|
Total
|
||||||||||||||||
For
the year ended
December
31, 2007
|
||||||||||||||||||||
Net
interest income (expense) from
external
customers
|
$ | 294,373 | $ | (3 | ) | $ | 4,947 | $ | 1,466 | $ | 300,783 | |||||||||
Internal
funding
|
(16,733 | ) | - | (922 | ) | 17,655 | - | |||||||||||||
Net
interest income (expense)
|
277,640 | (3 | ) | 4,025 | 19,121 | 300,783 | ||||||||||||||
Provision
for loan losses
|
23,409 | - | 4 | 371 | 23,784 | |||||||||||||||
Net
interest income (expense) after provision for loan losses
|
254,231 | (3 | ) | 4,021 | 18,750 | 276,999 | ||||||||||||||
Noninterest
income
|
101,173 | 35,574 | 26,433 | (733 | ) | 162,447 | ||||||||||||||
Noninterest
expense
|
196,466 | 24,285 | 19,848 | 35,850 | 276,449 | |||||||||||||||
Income
(loss) before income taxes
|
158,938 | 11,286 | 10,606 | (17,833 | ) | 162,997 | ||||||||||||||
54,846 | 4,378 | 3,756 | (8,578 | ) | 54,402 | |||||||||||||||
Segment
net income (loss)
|
$ | 104,092 | $ | 6,908 | $ | 6,850 | $ | (9,255 | ) | $ | 108,595 | |||||||||
Selected
Financial Information
|
||||||||||||||||||||
Average
assets
|
$ | 7,373,472 | $ | 21,670 | $ | 90,533 | $ | 1,360,162 | $ | 8,845,837 | ||||||||||
Depreciation
and amortization
|
$ | 21,369 | $ | 407 | $ | 383 | $ | 5,604 | $ | 27,763 |
For
the year ended
December
31, 2006
|
||||||||||||||||||||
Net
interest income (expense) from external customers
|
$ | 278,083 | $ | (8 | ) | $ | 4,552 | $ | (2,056 | ) | $ | 280,571 | ||||||||
Internal
funding
|
(6,679 | ) | - | (470 | ) | 7,149 | - | |||||||||||||
Net
interest income (expense)
|
271,404 | (8 | ) | 4,082 | 5,093 | 280,571 | ||||||||||||||
Provision
for loan losses
|
3,687 | - | 1 | (9,626 | ) | (5,938 | ) | |||||||||||||
Net
interest income (expense) after provision for loan losses
|
267,717 | (8 | ) | 4,081 | 14,719 | 286,509 | ||||||||||||||
Noninterest
income
|
94,876 | 34,279 | 23,696 | 2,277 | 155,128 | |||||||||||||||
Noninterest
expense
|
185,617 | 23,384 | 18,888 | 32,591 | 260,480 | |||||||||||||||
Income
(loss) before income taxes
|
176,976 | 10,887 | 8,889 | (15,595 | ) | 181,157 | ||||||||||||||
Income
taxes
|
61,129 | 4,224 | 3,241 | (6,710 | ) | 61,884 | ||||||||||||||
Segment
net income (loss)
|
$ | 115,847 | $ | 6,663 | $ | 5,648 | $ | (8,885 | ) | $ | 119,273 | |||||||||
Selected
Financial Information
|
||||||||||||||||||||
Average
assets
|
$ | 6,801,864 | $ | 25,065 | $ | 88,695 | $ | 1,511,864 | $ | 8,427,488 | ||||||||||
Depreciation
and amortization
|
$ | 21,111 | $ | 392 | $ | 422 | $ | 4,764 | $ | 26,689 |
For
the year ended
December
31, 2005
|
||||||||||||||||||||
Net
interest income (expense) from external customers
|
$ | 266,982 | $ | (10 | ) | $ | 3,797 | $ | 5,672 | $ | 276,441 | |||||||||
Internal
funding
|
(18,005 | ) | - | (211 | ) | 18,216 | - | |||||||||||||
Net
interest income (expense)
|
248,977 | (10 | ) | 3,586 | 23,888 | 276,441 | ||||||||||||||
Provision
for loan losses
|
7,815 | - | 72 | 11,654 | 19,541 | |||||||||||||||
Net
interest income (expense) after provision for loan losses
|
241,162 | (10 | ) | 3,514 | 12,234 | 256,900 | ||||||||||||||
Noninterest
income
|
92,172 | 33,044 | 22,201 | (4,310 | ) | 143,107 | ||||||||||||||
Noninterest
expense
|
172,779 | 22,566 | 18,368 | 29,563 | 243,276 | |||||||||||||||
Income
(loss) before income taxes
|
160,555 | 10,468 | 7,347 | (21,639 | ) | 156,731 | ||||||||||||||
Income
taxes
|
55,372 | 4,309 | 2,698 | (8,599 | ) | 53,780 | ||||||||||||||
Segment
net income (loss)
|
$ | 105,183 | $ | 6,159 | $ | 4,649 | $ | (13,040 | ) | $ | 102,951 | |||||||||
Selected
Financial Information
|
||||||||||||||||||||
Average
assets
|
$ | 6,262,238 | $ | 22,234 | $ | 96,974 | $ | 1,825,037 | $ | 8,206,483 | ||||||||||
Depreciation
and amortization
|
$ | 19,437 | $ | 369 | $ | 524 | $ | 3,835 | $ | 24,165 |
($
in thousands)
|
||||||||
Condensed
Balance Sheets
|
||||||||
December
31,
|
||||||||
2007
|
2006
|
|||||||
Assets:
|
||||||||
Investment
in banks
|
$ | 987,365 | $ | 961,864 | ||||
Other
assets
|
9,778 | 12,042 | ||||||
Total
Assets
|
$ | 997,143 | $ | 973,906 | ||||
Liabilities
and Shareholders' Equity:
|
||||||||
Accrued
expense
|
$ | 403 | $ | 1,467 | ||||
Borrowings
|
7,000 | 11,000 | ||||||
Junior
subordinated debt securities
|
70,104 | 70,104 | ||||||
Shareholders'
equity
|
919,636 | 891,335 | ||||||
Total
Liabilities and Shareholders' Equity
|
$ | 997,143 | $ | 973,906 |
Condensed
Statements of Income
|
||||||||||||
Years
Ended December 31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Revenue:
|
||||||||||||
Dividends
received from banks
|
$ | 96,228 | $ | 85,741 | $ | 87,766 | ||||||
Earnings
of subsidiaries over distributions
|
15,922 | 34,238 | 14,860 | |||||||||
Other
income
|
326 | 1,862 | 1,346 | |||||||||
Total
Revenue
|
112,476 | 121,841 | 103,972 | |||||||||
Expense:
|
||||||||||||
Interest
expense
|
444 | 628 | 268 | |||||||||
Other
expense
|
3,437 | 1,940 | 753 | |||||||||
Total
Expense
|
3,881 | 2,568 | 1,021 | |||||||||
Net
Income
|
$ | 108,595 | $ | 119,273 | $ | 102,951 |
Condensed
Statements of Cash Flows
|
||||||||||||
Years
Ended December 31,
|
||||||||||||
2007
|
2006
|
2005
|
||||||||||
Operating
Activities:
|
||||||||||||
Net
income
|
$ | 108,595 | $ | 119,273 | $ | 102,951 | ||||||
Adjustments
to reconcile net income to net cash provided by operating
activities:
|
||||||||||||
Increase
in investment in subsidiaries
|
(15,922 | ) | (34,238 | ) | (14,860 | ) | ||||||
Other
|
(583 | ) | 1,043 | 864 | ||||||||
Net
cash provided by operating activities
|
92,090 | 86,078 | 88,955 | |||||||||
Investing
Activities:
|
||||||||||||
Payment
for investments in subsidiaries
|
- | (212,669 | ) | - | ||||||||
Proceeds
from maturities of securities available for sale
|
3,172 | - | - | |||||||||
Proceeds
from sales of securities available for sale
|
- | 15,409 | 3,001 | |||||||||
Purchases
of securities available for sale
|
(7,167 | ) | - | - | ||||||||
Proceeds
from sale of other assets
|
3,550 | - | - | |||||||||
Net
cash (used in) provided by investing activities
|
(445 | ) | (197,260 | ) | 3,001 | |||||||
Financing
Activities:
|
||||||||||||
Proceeds
from line of credit
|
17,000 | - | 11,000 | |||||||||
Repayments
of line of credit
|
(21,000 | ) | - | - | ||||||||
Proceeds
from issuance of junior subordinated debt securities
|
- | 70,104 | - | |||||||||
Cash
dividends
|
(51,472 | ) | (48,634 | ) | (45,758 | ) | ||||||
Common
stock transactions, net
|
(38,410 | ) | 90,336 | (58,412 | ) | |||||||
Net
cash (used in) provided by financing activities
|
(93,882 | ) | 111,806 | (93,170 | ) | |||||||
(Decrease)
increase in cash and cash equivalents
|
(2,237 | ) | 624 | (1,214 | ) | |||||||
Cash
and cash equivalents at beginning of year
|
5,210 | 4,586 | 5,800 | |||||||||
Cash
and cash equivalents at end of year
|
$ | 2,973 | $ | 5,210 | $ | 4,586 |
($
in thousands except per share data)
|
||||||||||||||||||||
Years
Ended December 31,
|
2007
|
2006
|
2005
|
2004
|
2003
|
|||||||||||||||
Consolidated
Statements of Income
|
||||||||||||||||||||
Total
interest income
|
$ | 543,143 | $ | 482,746 | $ | 415,697 | $ | 364,355 | $ | 359,388 | ||||||||||
Total
interest expense
|
242,360 | 202,175 | 139,256 | 88,738 | 89,558 | |||||||||||||||
Net
interest income
|
300,783 | 280,571 | 276,441 | 275,617 | 269,830 | |||||||||||||||
Provision
for loan losses
|
23,784 | (5,938 | ) | 19,541 | (3,055 | ) | 9,771 | |||||||||||||
Noninterest
income
|
162,447 | 155,128 | 143,107 | 124,028 | 136,310 | |||||||||||||||
Noninterest
expense
|
276,449 | 260,480 | 243,276 | 225,309 | 214,887 | |||||||||||||||
Income
before income taxes
|
162,997 | 181,157 | 156,731 | 177,391 | 181,482 | |||||||||||||||
Income
taxes
|
54,402 | 61,884 | 53,780 | 60,682 | 62,952 | |||||||||||||||
Net
Income
|
$ | 108,595 | $ | 119,273 | $ | 102,951 | $ | 116,709 | $ | 118,530 | ||||||||||
Per
Share Data
|
||||||||||||||||||||
Basic
earnings per share
|
$ | 1.88 | $ | 2.11 | $ | 1.82 | $ | 2.01 | $ | 2.01 | ||||||||||
Diluted
earnings per share
|
$ | 1.88 | $ | 2.09 | $ | 1.81 | $ | 2.00 | $ | 2.00 | ||||||||||
Cash
dividends per share
|
$ | 0.89 | $ | 0.85 | $ | 0.81 | $ | 0.77 | $ | 0.69 |
December
31,
|
2007
|
2006
|
2005
|
2004
|
2003
|
|||||||||||||||
Consolidated
Balance Sheets
|
||||||||||||||||||||
Total
assets
|
$ | 8,966,802 | $ | 8,840,970 | $ | 8,389,750 | $ | 8,052,957 | $ | 7,914,321 | ||||||||||
Securities
|
717,441 | 1,050,515 | 1,295,784 | 1,655,621 | 2,051,563 | |||||||||||||||
Loans
(including loans held for sale)
|
7,188,300 | 6,658,528 | 6,060,279 | 5,447,006 | 5,044,143 | |||||||||||||||
Deposits
|
6,869,272 | 6,976,164 | 6,282,814 | 5,450,093 | 5,089,459 | |||||||||||||||
Shareholders'
equity
|
919,636 | 891,335 | 741,463 | 750,396 | 689,573 |
(
unaudited)
|
||||||||||||||||
($
in thousands except per share data)
|
||||||||||||||||
2007
|
1st
|
2nd
|
3rd
|
4th
|
||||||||||||
Interest
income
|
$ | 130,693 | $ | 134,469 | $ | 137,593 | $ | 140,388 | ||||||||
Net
interest income
|
71,942 | 73,832 | 75,086 | 79,923 | ||||||||||||
Provision
for loan losses
|
1,639 | 145 | 4,999 | 17,001 | ||||||||||||
Income
before income taxes
|
39,048 | 45,324 | 43,168 | 35,457 | ||||||||||||
Net
income
|
25,857 | 29,828 | 29,081 | 23,829 | ||||||||||||
Earnings
per share
|
||||||||||||||||
Basic
|
0.44 | 0.52 | 0.51 | 0.42 | ||||||||||||
Diluted
|
0.44 | 0.51 | 0.51 | 0.42 |
2006
|
1st
|
2nd
|
3rd
|
4th
|
||||||||||||
Interest
income
|
$ | 110,633 | $ | 116,136 | $ | 125,197 | $ | 130,780 | ||||||||
Net
interest income
|
68,241 | 69,618 | 70,630 | 72,082 | ||||||||||||
Provision
for loan losses
|
(2,984 | ) | (1,964 | ) | (81 | ) | (909 | ) | ||||||||
Income
before income taxes
|
44,403 | 47,213 | 44,954 | 44,587 | ||||||||||||
Net
income
|
29,319 | 30,774 | 29,761 | 29,419 | ||||||||||||
Earnings
per share
|
||||||||||||||||
Basic
|
0.53 | 0.55 | 0.53 | 0.50 | ||||||||||||
Diluted
|
0.52 | 0.55 | 0.52 | 0.50 |
Principal
Markets and Prices of Trustmark's
Stock
|
Dividends
|
Stock
Prices
|
|||||||||||
Per
Share
|
High
|
Low
|
||||||||||
2007
|
||||||||||||
4th
Quarter
|
$ | 0.23 | $ | 29.71 | $ | 23.10 | ||||||
3rd
Quarter
|
0.22 | 30.15 | 24.13 | |||||||||
2nd
Quarter
|
0.22 | 28.76 | 25.04 | |||||||||
1st
Quarter
|
0.22 | 33.69 | 26.85 |
2006
|
||||||||||||
4th
Quarter
|
$ | 0.22 | $ | 33.61 | $ | 30.84 | ||||||
3rd
Quarter
|
0.21 | 32.78 | 28.31 | |||||||||
2nd
Quarter
|
0.21 | 32.25 | 29.34 | |||||||||
1st
Quarter
|
0.21 | 32.00 | 27.01 |
Company
|
2002
|
2003
|
2004
|
2005
|
2006
|
2007
|
Trustmark
|
100
|
126.24
|
137.53
|
125.15
|
153.14
|
122.64
|
Hemscott
Industry
Group
413
|
100
|
127.68
|
146.81
|
148.65
|
175.16
|
119.72
|
NASDAQ
|
100
|
150.36
|
163.00
|
166.58
|
183.68
|
201.91
|
Non-GAAP
Disclosures
|
||||||||||||||||||||||||
($
in thousands except per share data)
|
||||||||||||||||||||||||
Years
Ended December 31,
|
||||||||||||||||||||||||
2007
|
2006
|
2005
|
||||||||||||||||||||||
Amount
|
Basic
EPS
|
Amount
|
Basic
EPS
|
Amount
|
Basic
EPS
|
|||||||||||||||||||
Net
Income as reported-GAAP
|
$ | 108,595 | $ | 1.882 | $ | 119,273 | $ | 2.106 | $ | 102,951 | $ | 1.819 | ||||||||||||
Adjustments
(net of taxes):
|
||||||||||||||||||||||||
Correction
of Accounting Error
|
(1,623 | ) | (0.028 | ) | - | - | - | - | ||||||||||||||||
Hurricane
Katrina
|
(665 | ) | (0.012 | ) | (5,688 | ) | (0.100 | ) | 10,083 | 0.178 | ||||||||||||||
Visa
Litigation Contingency
|
494 | 0.009 | - | - | - | - | ||||||||||||||||||
Sale
of Merchant Service Portfolio
|
- | - | - | - | (3,551 | ) | (0.063 | ) | ||||||||||||||||
(1,794 | ) | (0.031 | ) | (5,688 | ) | (0.100 | ) | 6,532 | 0.115 | |||||||||||||||
Net
Income adjusted for specific items (Non-GAAP)
|
$ | 106,801 | $ | 1.851 | $ | 113,585 | $ | 2.006 | $ | 109,483 | $ | 1.934 |
Noninterest
Expense
|
||||||||||||||||||||||||
($
in thousands)
|
||||||||||||||||||||||||
2007
|
2006
|
2005
|
||||||||||||||||||||||
Amount
|
%
Change
|
Amount
|
%
Change
|
Amount
|
%
Change
|
|||||||||||||||||||
Salaries
and employee benefits
|
$ | 170,722 | 6.9 | % | $ | 159,690 | 6.6 | % | $ | 149,817 | 12.8 | % | ||||||||||||
Services
and fees
|
37,259 | 1.6 | % | 36,659 | 7.8 | % | 34,003 | -3.5 | % | |||||||||||||||
Net
occupancy-premises
|
18,517 | 8.2 | % | 17,120 | 12.0 | % | 15,280 | 1.7 | % | |||||||||||||||
Equipment
expense
|
16,039 | 7.7 | % | 14,899 | -1.9 | % | 15,180 | 1.2 | % | |||||||||||||||
Other
expense
|
33,912 | 5.6 | % | 32,112 | 10.7 | % | 28,996 | 6.4 | % | |||||||||||||||
Total
Noninterest Expense
|
$ | 276,449 | 6.1 | % | $ | 260,480 | 7.1 | % | $ | 243,276 | 8.0 | % |
2007
|
2006
|
2005
|
||||||||||
General
Banking
|
$ | 104,092 | $ | 115,847 | $ | 105,183 | ||||||
Insurance
|
6,908 | 6,663 | 6,159 | |||||||||
Wealth
Management
|
6,850 | 5,648 | 4,649 | |||||||||
Administration
|
(9,255 | ) | (8,885 | ) | (13,040 | ) | ||||||
Consolidated
Net Income
|
$ | 108,595 | $ | 119,273 | $ | 102,951 |
Regulatory
Capital Table
|
||||||||||||||||||||||||
($
in thousands)
|
||||||||||||||||||||||||
Actual
Regulatory Capital
|
Minimum
Regulatory
Capital
Required
|
Minimum
Regulatory Provision
to
be Well-Capitalized
|
||||||||||||||||||||||
At
December 31, 2007:
|
Amount
|
Ratio
|
Amount
|
Ratio
|
Amount
|
Ratio
|
||||||||||||||||||
Total
Capital (to Risk Weighted Assets)
|
||||||||||||||||||||||||
Trustmark Corporation
|
$ | 805,649 | 10.93 | % | $ | 589,509 | 8.00 | % | n/a | n/a | ||||||||||||||
Trustmark National Bank
|
781,725 | 10.75 | % | 581,482 | 8.00 | % | $ | 726,852 | 10.00 | % | ||||||||||||||
Tier
1 Capital (to Risk Weighted Assets)
|
||||||||||||||||||||||||
Trustmark
Corporation
|
$ | 676,089 | 9.17 | % | $ | 294,755 | 4.00 | % | n/a | n/a | ||||||||||||||
Trustmark
National Bank
|
658,059 | 9.05 | % | 290,741 | 4.00 | % | $ | 436,111 | 6.00 | % | ||||||||||||||
Tier
1 Capital (to Average Assets)
|
||||||||||||||||||||||||
Trustmark
Corporation
|
$ | 676,089 | 7.86 | % | $ | 257,950 | 3.00 | % | n/a | n/a | ||||||||||||||
Trustmark
National Bank
|
658,059 | 7.79 | % | 253,425 | 3.00 | % | $ | 422,375 | 5.00 | % |
At December 31, 2006: | ||||||||||||||||||||||||
Total
Capital (to Risk Weighted Assets)
|
||||||||||||||||||||||||
Trustmark
Corporation
|
$ | 771,477 | 11.40 | % | $ | 541,412 | 8.00 | % | n/a | n/a | ||||||||||||||
Trustmark
National Bank
|
750,745 | 11.26 | % | 534,331 | 8.00 | % | $ | 667,914 | 10.00 | % | ||||||||||||||
Tier
1 Capital (to Risk Weighted Assets)
|
||||||||||||||||||||||||
Trustmark
Corporation
|
$ | 649,702 | 9.60 | % | $ | 270,706 | 4.00 | % | n/a | n/a | ||||||||||||||
Trustmark
National Bank
|
634,694 | 9.52 | % | 267,165 | 4.00 | % | $ | 400,748 | 6.00 | % | ||||||||||||||
Tier
1 Capital (to Average Assets)
|
||||||||||||||||||||||||
Trustmark
Corporation
|
$ | 649,702 | 7.65 | % | $ | 254,856 | 3.00 | % | n/a | n/a | ||||||||||||||
Trustmark
National Bank
|
634,694 | 7.60 | % | 250,872 | 3.00 | % | $ | 418,120 | 5.00 | % |
Nonperforming
Assets
|
||||||||
($
in thousands)
|
||||||||
December
31,
|
||||||||
2007
|
2006
|
|||||||
Nonaccrual
and restructured loans
|
$ | 65,173 | $ | 36,399 | ||||
Other
real estate (ORE)
|
8,348 | 2,509 | ||||||
Total
nonperforming assets
|
$ | 73,521 | $ | 38,908 | ||||
Nonperforming
assets/total loans (including loans held for sale) and ORE
|
1.02 | % | 0.58 | % | ||||
Accruing
loans past due 90 days or more
|
$ | 4,853 | $ | 2,957 | ||||
Serviced
GNMA loans eligible for repurchase
|
11,847 | 8,510 | ||||||
Total
loans past due 90 days or more
|
$ | 16,700 | $ | 11,467 |
Name
|
Jurisdiction
Where Organized
|
|
Trustmark
National Bank
|
Mississippi
|
|
F.
S. Corporation
|
Mississippi
|
|
First
Building Corporation
|
Mississippi
|
|
Somerville
Bank & Trust Company
|
Tennessee
|
|
Trustmark
Preferred Capital Trust I
|
Delaware
|
|
Republic
Bancshares Capital Trust I
|
Delaware
|
|
Trustmark
Securities, Inc. (1)
|
Mississippi
|
|
The
Bottrell Insurance Agency, Inc. (1)
|
Mississippi
|
|
Trustmark
Investment Advisors, Inc. (1)
|
Mississippi
|
|
TRMK
Risk Management, Inc. (1)
|
Mississippi
|
|
Fisher-Brown,
Incorporated (1)
|
Florida
|
1)
|
I
have reviewed this annual report on Form 10-K of Trustmark Corporation and
Subsidiaries;
|
2)
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3)
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
4)
|
The
registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and we
have:
|
a.
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
b.
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c.
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
d.
|
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
5)
|
The
registrant's other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of registrant's board of
directors (or persons performing the equivalent
function):
|
a.
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information;
and
|
b.
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
|
BY:
|
/s/ Richard G.
Hickson
|
Richard
G. Hickson
|
|
Chairman
of the Board, President
|
|
&
Chief Executive Officer
|
|
DATE:
|
February
29, 2008
|
1)
|
I
have reviewed this annual report on Form 10-K of Trustmark Corporation and
Subsidiaries;
|
2)
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3)
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
4)
|
The
registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and we
have:
|
a.
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
b.
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c.
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
d.
|
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
5)
|
The
registrant's other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of registrant's board of
directors (or persons performing the equivalent
function):
|
a.
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information;
and
|
b.
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
|
BY:
|
/s/ Louis E.
Greer
|
Louis
E. Greer
|
|
Treasurer
and Principal
|
|
Financial
Officer
|
|
DATE:
|
February
29, 2008
|
1)
|
The
Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934;
and
|
2)
|
The
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of
Trustmark.
|
BY:
|
/s/ Richard G.
Hickson
|
Richard
G. Hickson
|
|
Chairman
of the Board, President
|
|
&
Chief Executive Officer
|
|
DATE:
|
February
29, 2008
|
1)
|
The
Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934;
and
|
2)
|
The
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of
Trustmark.
|
BY:
|
/s/ Louis E.
Greer
|
Louis
E. Greer
|
|
Treasurer and
Principal
|
|
Financial
Officer
|
|
DATE:
|
February
29, 2008
|