EXHIBIT 10.2
DIRECTORS DEFERRED INCOME AGREEMENT
This Agreement is entered into on this the ______________ day
of __________________, 19 ___________, by and between PEOPLES BANK OF BILOXI,
BILOXI, MISSISSIPPI, hereinafter called the "Bank", and XXXX X. PAGE,
hereinafter called the "Director".
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the Bank have contributed significantly to the success
and growth of the Bank; and
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future; and
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director for five years if re-elected to serve on the Board of
Directors; and
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
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NOW, THEREFORE, it is mutually agreed as follows:
1. DEFINITIONS
For the purposes of this Agreement, whenever the context so indicates,
the singular or plural number and the masculine, feminine, or neuter gender
shall be deemed to include the other, the terms, "he," "his," and "him," shall
refer to the Officer, and the capitalized terms shall have the following
meanings:
Beneficiary: The person or persons the Director has designated in
writing to the Bank; if none, then the Director's
Spouse, if living; if none, then the Children of the
Director; if none, then the Estate of the Director.
Children: The Director's children, both natural and adopted,
then living at the time payments are due the Children
under this Agreement.
Deferred
Compensation
Benefit: The benefit provided to the Director at his
Retirement Age, provided he has satisfied the
conditions and terms of this Agreement, as calculated
in paragraph 5.
Estate: Means the Estate of the Director. The benefits
remaining, if any, after death of the Director, the
Director's designated Beneficiaries, Spouse, and
Children shall be paid to the Estate of the Director.
Spouse: The individual to whom the Director is legally
married at the time of the Director's death.
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2. DEFERRAL OF FEES
The Director has elected to defer receipt of Five Thousand Five Hundred
and 00/100 Dollars ($5,500.00) annually of Director's fees to be earned during
the five year period which commenced with the execution of the Election to
Participate Form (a copy of which is attached hereto), said form to be filed
with the Secretary of the Board. Any increase in Director's fees payable to the
Directors of the Bank due to an increase in the fee structure shall be covered
by the above mentioned election unless the Director directs the Secretary in
writing within 10 days after notification of the increase and prior to the right
to receive the additional fees that such additional fees are not to be deferred.
If Director fees are increased or decreased during the deferral period, the
compensation payable under paragraph (3) and (4) shall be determined by
reference to the Adjustment Schedule held by the Secretary and adopted by the
Board of Directors and evidenced by an addendum to this Agreement.
3. COMPENSATION
The Bank agrees to pay to the Director, if living, and if not, then to
the designated Beneficiary(ies) as recorded with the Secretary of the Bank, the
total sum of One Hundred Seventeen Thousand Nine Hundred Twenty and 40/100
Dollars ($117,920.40) payable in monthly installments of Nine Hundred Eighty-two
and 67/100 Dollars ($982.67) for one hundred twenty consecutive months,
commencing on the first day of the month following the completion of the five
year deferral or the Director's attainment of age 65 whichever occurs last, or
upon Director's death if such shall occur first. However, said amounts shall be
adjusted as provided by the provisions of paragraph 5 as required therein.
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4. DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of monthly payments, but prior
to receiving the full one hundred twenty monthly installments, the remaining
monthly installments will be paid to the Director's designated Beneficiary(ies).
The Beneficiary(ies) shall receive all remaining monthly installments which the
Director would have received until the total sum set forth in paragraph 3 is
paid.
5. BENEFIT REDUCTION CLAUSE
If the Director shall terminate service on the Board during the five
year deferral period, the benefits provided under this Agreement will be reduced
prorata by the amount of time remaining in the five year period.
6. STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of this Agreement restrict the right of the
Bank's Shareholders to replace the Director or the right of the Director to
terminate service on the Board.
7. BINDING EFFECT
This Agreement shall be binding upon the parties hereto and upon the
successors and assigns of the Bank, and upon the heirs and legal representatives
of the Director.
8. BENEFICIARY DESIGNATION
For purposes of this Agreement, the Director shall designate primary
and contingent Beneficiary(ies) on forms furnished by the Bank (a copy is
attached hereto). Such Director may then from time to time change the designated
Beneficiary(ies) by written notice to the Bank and upon such change, the rights
of all previously designated Beneficiary(ies) to receive any benefits under this
Agreement shall cease. If, at the date of death of the Director, no duly
designated
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Beneficiary(ies) exists, or if the Beneficiary(ies) designated shall have died
prior to the death of the Director, or if the Director has revoked a prior
designation by a writing filed with the Bank without having filed a new
designation, then any death benefits which would have been payable to the
Beneficiary(ies) shall be payable to the Director's Spouse, if any; if none, to
the Director's surviving Children, share and share alike; or if non survive,
then to the Director's Estate.
9. INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for their affairs because of illness or
accident, or is a minor, any payment due (unless a prior claim therefore shall
have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Gift to Minors Act, or
to any person deemed by the Bank to have incurred expense for such person
otherwise entitled to payment, in such manner and proportions as the Bank may
determine. Any such payment shall be a complete discharge of the liabilities of
the Bank under this Agreement.
10. ASSIGNMENT OF RIGHTS
None of the rights to compensation under this Agreement are assignable
by the Director or any Beneficiary(ies) or designee of the Director, and any
attempt to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
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11. FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in whole or part through escrow, trust, or
otherwise such as to create a pre-retirement or post-retirement taxable event to
the Director or an annual post-death taxable event to his beneficiary through
direct annual or monthly payments to the Director of his beneficiary as provided
in paragraph 3.
12. DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary(ies) of the
Director, or any other person claiming through the Director under this
Agreement, shall be solely those of an unsecured general creditor of the Bank.
The Director, a designated Beneficiary(ies) of the Director, or any other person
claiming through the Director shall only have the right to receive from the Bank
those payments as specified under this Agreement.
13. ASSETS
It is agreed that the Director, the Director's designated
Beneficiary(ies), or any other person claiming through the Director shall have
no rights or interests whatsoever in any asset of the Bank in connection with
the liabilities the Bank has assumed under this Agreement, or otherwise. Any
asset used or acquired by the Bank in connection with the liabilities it has
assumed under this Agreement shall not be deemed to be held under any trust for
the benefit of the Director or the Director's designated Beneficiary(ies), nor
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shall it be considered security for the performance of the obligations of the
Bank, and it shall be, and remain, a general, unpledged, and unrestricted asset
of the Bank.
14. AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or in part, by the
mutual written agreement of the Bank and the Director.
15. LAW GOVERNING
This Agreement shall be governed by the laws of the State of
Mississippi.
16. SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then: (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
17. SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
execution of this Agreement. If the Director dies during this two year period
due to suicide, the fees deferred will be paid to the Director's designated
Beneficiary(ies) in a single payment. Payment is to be made within thirty days
after the Director's death is declared a suicide by competent legal authority.
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Credit shall be given to the Bank for payments made prior to determination of
suicide.
18. PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
19. EXECUTION OF AGREEMENT
This Agreement shall be executed in triplicate, each copy of which,
when so executed and delivered, shall be an original, but all three copies shall
together constitute one and the same instrument.
In witness hereof, the parties have signed this Agreement the day and
year written here below.
________________________ ________________________________
Date XXXX X. PAGE
PEOPLES BANK OF BILOXI
BILOXI, MISSISSIPPI
________________________ ________________________________
Date Title
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THE PEOPLES BANK, BILOXI, MISSISSIPPI
BILOXI, MISSISSIPPI
DIRECTORS DEFERRED INCOME AGREEMENT
This Agreement is effective on the 1st day of January, 1991, by and
between THE PEOPLES BANK, BILOXI, MISSISSIPPI Biloxi, Mississippi (the "Bank")
and XXXX X. PAGE (the "Director").
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the Bank have contributed significantly to the success
and growth of the Bank;
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future;
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director if re-elected to serve on the Board of Directors;
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
1
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1. DEFINITIONS
For the purposes of this Agreement, whenever the context so indicates,
the capitalized terms shall have the following meanings:
Beneficiary: The person or persons designated by the Director who
may become entitled to receive the Compensation
payable under Article 3 and Article 4 of this
Agreement (See Article 8).
Deferral Period: The sixty (60) month period which commenced on the
date shown on the Addendum to this AGREEMENT. An
Election to Participate Form signed by the Director
is included and made a part of this Agreement.
ARTICLE 2. DEFERRAL OF FEES
The Director has elected to defer receipt of Director's fees to be
earned during the Deferral Period. Once the Director has executed the Election
to Participate Form, a subsequent increase in the Director's fees payable due to
an increase in the fee structure shall also be deferred under the provisions of
this Agreement, unless the Director directs the Secretary in writing within 10
days after notification of the increase and prior to the right to receive the
additional fees that such additional fees are not to be deferred. If Director
fees are increased or decreased during the Deferral Period, the Compensation
payable under Article 3 and Article 4 shall be actuarially determined and
evidenced by the Addendum to this Agreement.
ARTICLE 3. COMPENSATION
The Bank agrees to pay Director, if living, and if not, then to the
designated Beneficiary, the Annual Compensation as
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shown in the Addendum to this Agreement. Annual Compensation is to be paid in
monthly payments, for a total of one hundred twenty (120) consecutive payments,
commencing on the first business day of the month following the date upon which
the Director attains the age of 65, or upon Director's death if such shall occur
before the payments have commenced. The payments may be accelerated or paid in a
lump sum at the request of the Director and subject to the Board's discretion.
Accelerated payments are to be actuarially determined to be of substantially the
same value as payments made under the terms of this Article using the current
Pension Benefit Guaranty Corporation interest rate for valuing immediate
annuities. However, in any event, Compensation payable under this Article 3 and
the Addendum to this Agreement shall be adjusted as provided by the provisions
of Article 5.
ARTICLE 4. DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of payments, but prior to
receiving the full one hundred twenty (120) payments, the Bank shall continue to
pay such payments to the Director's Beneficiary until the total number of
payments made to the Director and the Beneficiary equal one hundred twenty
(120).
ARTICLE 5. BENEFIT REDUCTION CLAUSE
If the Director shall terminate service on the Board
during the Deferral Period, the Compensation provided under this Agreement will
be reduced pro rata by the amount of time remaining in the Deferral Period.
ARTICLE 6. STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of
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this Agreement restrict the right of the Bank's shareholders to replace the
Director or the right of the Director to terminate service on the Board.
ARTICLE 7. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and upon the successors and assigns of the Bank, and upon the
heirs and legal representatives of the Director.
ARTICLE 8. BENEFICIARY DESIGNATION
While covered under this Agreement, the Director may from time to time
designate, in writing, any person or entity, contingently or successively to
whom the Bank shall pay the Director's compensation in the event of the
Director's death. If the Director fails to designate a Beneficiary or if the
Beneficiary predeceases the Director, then benefits are payable to the
Director's estate. If the Beneficiary dies before complete distribution of the
Director's benefits, then the Bank shall pay the Director's Compensation to the
Beneficiary's estate.
ARTICLE 9. INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for his or her affairs because of illness
or accident, or is a minor, any payment due (unless a prior claim therefore
shall have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Gift to Minors Act, or
to any person deemed by the Bank to have incurred expense for
4
such person otherwise entitled to payment, in such manner and proportions as the
Bank may determine. Any such payment shall be a complete discharge of the
liabilities of the Bank under this Agreement.
ARTICLE 10. ASSIGNMENT OF RIGHTS
None of the rights to Compensation under this Agreement are assignable
by the Director or any Beneficiary or designee of the Director, and any attempt
to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
ARTICLE 11. NAMED FIDUCIARY
(a) The Bank is hereby designated as the Named Fiduciary under
this Agreement. The Named Fiduciary shall have authority to control and
manage the operation and administration of this Agreement, and it shall be
responsible for establishing and carrying out a funding policy and method
consistent with the objectives of this Agreement.
(b) The Bank shall make all determinations as to rights to
benefits under this Agreement. Any decision by the Bank denying a claim
made by the Director or by a Beneficiary for benefits under this Agreement
shall be stated in writing and delivered or mailed to the Director or such
Beneficiary. Such statement shall set forth the specific reasons for the
denial, written to the best of the Bank's ability in a manner that may be
understood without legal or actuarial counsel. In addition, the Bank shall
afford a reasonable opportunity to the Director or the Beneficiary for a
full and fair review of the decision denying such claim.
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(c) Subject to the foregoing, the Board of Directors of the Bank
shall have full power and authority to interpret, construe and administer
this Agreement. No member of the Board of Directors of the Bank shall, in
any event, be liable to any person for any action taken or omitted in
connection with the interpretation, construction or administration of this
Agreement, so long as such action or omission to act be made in good faith.
In no event, however, shall the provisions of Article 12 or any other
provisions in this Agreement prevent the Director from seeking legal
recourse for any claim under this Agreement.
ARTICLE 12. FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in whole or part through escrow, trust, or
otherwise such as to create a taxable event to the Director or the Director's
Beneficiary.
ARTICLE 13. DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary of the Director,
or any other person claiming through the Director under this agreement, shall be
solely those of an unsecured general creditor of the Bank. The Director, a
designated Beneficiary of the Director, or any other person claiming through the
Director shall only have the right to receive from the Bank those payments as
specified under this Agreement.
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ARTICLE 14. ASSETS
The Director, the Director's designated Beneficiary, or any other
person claiming through the Director shall have no rights or interests
whatsoever in any asset of the Bank in connection with the liabilities the Bank
has assumed under this Agreement, or otherwise. Any asset used or acquired by
the Bank in connection with the liabilities it has assumed under this Agreement
shall not be deemed to be held in trust for the benefit of the Director or the
Director's designated Beneficiary, nor shall it be considered security for the
performance of the obligations of the Bank, and it shall be, and remain, a
general, unpledged, and unrestricted asset of the Bank.
ARTICLE 15. AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or part, by the mutual
written agreement of the Bank and the Director.
ARTICLE 16. LAW GOVERNING
This Agreement shall be governed by the laws of the State of
Mississippi.
ARTICLE 17. SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
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ARTICLE 18. SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
execution of this Agreement. If the Director dies during this two year period
due to suicide, the fees deferred will be paid to the Director's designated
Beneficiary in a single payment. Payment is to be made within thirty days after
the Director's death is declared a suicide by competent legal authority. Credit
shall be given to the Bank for payments made prior to determination of suicide.
ARTICLE 19. PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
However, upon such postponement, the Bank will increase the total sum payable to
the Director or the Director's Beneficiaries under this Agreement by an
actuarially determined amount.
ARTICLE 20. PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the subject
matter hereof are merged into and superseded by this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement each
acknowledging a receipt of the fully signed original.
___________________________ __________________________________________
Date XXXX X. PAGE
THE PEOPLES BANK, BILOXI, MISSISSIPPI
BILOXI, MISSISSIPPI
___________________________ By__________________________________________
Date Title
9
THE PEOPLES BANK
BILOXI, MISSISSIPPI
DIRECTORS DEFERRED INCOME AGREEMENT
THIS AGREEMENT is effective on the 1st day of January, 1996, by and
between The Peoples Bank, Biloxi, Mississippi (the "Bank") and Xxxxxx Xxxxxxx
(the "Director") and supersedes the existing Director Deferred Income Agreement
between the parties.
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the Bank have contributed significantly to the success
and growth of the Bank;
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future;
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director if re-elected to serve on the Board of Directors;
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, whenever the context so requires,
the capitalized terms shall have the following meanings:
1.1 "Beneficiary" shall mean the person or persons designated by
the Director who may become entitled to receive the
Compensation payable under Article 3, 4, and 5 of this
Agreement (See Article 8).
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1.2 "Deferral Period" shall mean the period shown on the Addendum
to this Agreement. An Election to Participate Form signed by
the Director is included and made a part of this Agreement.
ARTICLE 2
DEFERRAL OF FEES
The Director has elected to defer receipt of Director's fees to be
earned during the Deferral Period. Once the Director has executed the Election
to Participate Form, a subsequent increase in the director's fees payable due to
an increase in the fee structure shall also be deferred under the provisions of
this Agreement, unless the Director directs the Secretary in writing within 10
days after notification of the increase and prior to the right to receive the
additional fees that such additional fees are not to be deferred. If Director
fees are increased or decreased during the Deferral Period for any reason other
than death of the Director, the compensation payable under Article 3 and Article
5 shall be actuarially determined and evidenced by the Addendum to this
Agreement.
ARTICLE 3
COMPENSATION
The Bank agrees to pay to the Director, if living, and if not, then to
the designated Beneficiary, the Annual Compensation as shown in the Addendum to
this Agreement. Annual Compensation is to be paid in monthly payments, for a
total of one hundred twenty (120) consecutive payments, commencing on the first
business day of the month following the Director's attainment of age 65, or upon
Director's death if such event shall occur before the payments have commenced.
However, in any event, Compensation payable under this Article 3 and the
Addendum to this Agreement shall be recalculated to reflect any increase or
decrease in the future deferral of fees for any reason other than death of the
Director during the Deferral Period.
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ARTICLE 4
DEATH OF DIRECTOR DURING DEFERRAL PERIOD
If the Director dies during the Deferral Period, the Bank shall pay to
the designated Beneficiary the Annual Compensation as shown in the Addendum to
this Agreement in effect at the time of death.
ARTICLE 5
DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of payments, but prior to
receiving the full one hundred twenty (120) consecutive payments, the Bank shall
continue to pay such payments to the Director's Beneficiary until the total
number of payments made to the Director and the Beneficiary equal one hundred
twenty (120).
ARTICLE 6
STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of this Agreement restrict the right of the
Bank's shareholders to replace the Director or the right of the Director to
terminate service on the Board.
ARTICLE 7
BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and upon the successors and assigns of the Bank, and upon the
heirs and legal representatives of the Director.
3
ARTICLE 8
BENEFICIARY DESIGNATION
While covered under this Agreement, the Director may from time to time
designate, in writing, any person or persons, contingently or successively to
whom the Bank shall pay the Director's compensation in the event of the
Director's death. If the Director fails to designate a Beneficiary or if the
Beneficiary designated by the Director predeceases the Director, then benefits
are payable to the Director's estate. If the Beneficiary dies before complete
distribution of the Director's Compensation, then the Bank shall pay the
Director's Compensation to the Director's estate.
ARTICLE 9
INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for his or her affairs because of illness
or accident, or is a minor, any payment due (unless a prior claim therefore
shall have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Transfers to Minors
Act, or to any person deemed by the Bank to have incurred expense for such
person otherwise entitled to payment, in such manner and proportions as the Bank
may determine. Any such payment shall be a complete discharge of the liabilities
of the Bank under this Agreement.
ARTICLE 10
ASSIGNMENT OF RIGHTS
None of the rights to Compensation under this Agreement are assignable
by the Director or any Beneficiary or designee of the Director, and any attempt
to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
4
ARTICLE 11
NAMED FIDUCIARY
(a) The Bank is hereby designated as the Named Fiduciary under this
Agreement. The Named Fiduciary shall have authority to control and manage the
operation and administration of this Agreement, and it shall be responsible for
establishing and carrying out a funding policy and method consistent with the
objectives of this Agreement.
(b) The Bank shall make all determinations as to rights to benefits
under this Agreement. Any decision by the Bank denying a claim made by the
Director or by a Beneficiary for benefits under this Agreement shall be stated
in writing and delivered or mailed to the Director or such Beneficiary. Such
statement shall set forth the specific reasons for the denial, written to the
best of the Bank's ability in a manner that may be understood without legal or
actuarial counsel. In addition, the Bank shall afford a reasonable opportunity
to the Director or the Beneficiary for a full and fair review of the decision
denying such claim.
(c) Subject to the foregoing, the Board of Directors of the Bank shall
have full power and authority to interpret, construe and administer this
Agreement. No member of the Board of Directors of the Bank shall, in any event,
be liable to any person for any action taken or omitted in connection with the
interpretation, construction or administration of this Agreement, so long as
such action or omission to act be made in good faith. In no event, however,
shall the provisions of Article 12 or any other provisions in this Agreement
prevent the Director from seeking legal recourse for any claim under this
Agreement.
ARTICLE 12
FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in
5
whole or part through escrow, trust, or otherwise to create a taxable event to
the Director or the Director's beneficiary.
ARTICLE 13
DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary of the Director,
or any other person claiming through the Director under this agreement, shall be
solely those of an unsecured general creditor of the Bank. The Director, a
designated Beneficiary of the Director, or any other person claiming through the
Director shall only have the right to receive from the Bank those payments as
specified under this Agreement.
ARTICLE 14
ASSETS
The Director, a Director's designated Beneficiary, or any other person
claiming through the Director shall have no rights or interests whatsoever in
any asset of the Bank in connection with the liabilities the Bank has assumed
under this Agreement, or otherwise. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not be
deemed to be held in trust for the benefit of the Director or the Director's
designated Beneficiary, nor shall it be considered security for the performance
of the obligations of the Bank, and it shall be, and remain, a general,
unpledged, and unrestricted asset of the Bank.
ARTICLE 15
AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or in part, by the
mutual written agreement of the Bank and the Director.
6
ARTICLE 16
LAW GOVERNING
This Agreement shall be governed by the laws of the state of
Mississippi.
ARTICLE 17
SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
ARTICLE 18
SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
effective date of this Agreement. If the Director dies during this two year
period due to suicide, the fees deferred plus interest will be paid to the
Director's designated Beneficiary in a single payment. Payment is to be made
within thirty days after the Director's death is declared a suicide by competent
legal authority. Credit shall be given to the Bank for payments made prior to
determination of suicide.
ARTICLE 19
PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
However, upon such postponement, the Bank will increase the total sum payable to
the Director or the Director's Beneficiaries under this Agreement by an
actuarially determined amount.
7
ARTICLE 20
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the subject
matter hereof are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement each
acknowledging a receipt of the fully signed original.
______________________________
XXXXXX XXXXXXX
THE PEOPLES BANK
BILOXI, MISSISSIPPI
BY:___________________________
8
THE PEOPLES BANK
BILOXI, MISSISSIPPI
DIRECTORS DEFERRED INCOME AGREEMENT
THIS AGREEMENT is effective on the 1st day of January, 1999, by and
between The Peoples Bank, Biloxi, Mississippi (the "Bank") and Xxxxxxxxx Xxxxxxx
(the "Director").
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the bank have contributed significantly to the success
and growth of the Bank;
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future;
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director if re-elected to serve on the Board of Directors;
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, whenever the context so
requires, the capitalized terms shall have the following meanings:
1.1 "Beneficiary" shall mean the person or persons designated by
the Director who may become entitled to receive the
Compensation payable under Article 3, 4, and 5 of this
Agreement (See Article 8).
1.2 "Deferral Period" shall mean the period shown on the Addendum
to this Agreement. An Election to Participate Form signed by
the Director Is included and made a part of this Agreement.
1
ARTICLE 2
DEFERRAL OF FEES
The Director has elected to defer receipt of Director's fees to be
earned during the Deferral Period. Once the Director has executed the Election
to Participate Form, a subsequent increase in the director's fees payable due to
an increase in the fee structure shall also be deferred under the provisions of
this Agreement, unless the Director directs the Secretary in writing within 10
days after notification of the increase and prior to the right to receive the
additional fees that such additional fees are not to be deferred. If Director
fees are increased or decreased during the Deferral Period for any reason other
than death of the Director, the compensation payable under Article 3 and Article
5 shall be actuarially determined and evidenced by the Addendum to this
Agreement.
ARTICLE 3
COMPENSATION
The Bank agrees to pay to the Director, if living, and if not, then to
the designated Beneficiary, the Annual Compensation as shown in the Addendum to
this Agreement. Annual Compensation is to be paid in monthly payments, for a
total of one hundred twenty (120) consecutive payments, commencing on the first
business day of the month following the Director's attainment of age 65, or upon
Director's death if such even shall occur before the payments have commenced.
However, in any event, Compensation payable under this Article 3 and the
Addendum to this Agreement shall be recalculated to reflect any increase or
decrease in the future deferral of fees for any reason other than death of the
Director during the Deferral Period.
2
ARTICLE 4
DEATH OF DIRECTOR DURING DEFERRAL PERIOD
If the Director dies during the Deferral Period, the Bank shall pay to
the designated Beneficiary the Annual Compensation as shown in the Addendum to
this Agreement in effect at the time of death.
ARTICLE 5
DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of payments, but prior to
receiving the full one hundred twenty (120) consecutive payments, the Bank shall
continue to pay such payments to the Director's Beneficiary until the total
number of payments made to the Director and the Beneficiary equal one hundred
twenty (120).
ARTICLE 6
STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of this Agreement restrict the right of the
Bank's shareholders to replace the Director or the right of the Director to
terminate service on the Board.
ARTICLE 7
BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and upon the successors and assigns of the Bank, and upon the
heirs and legal representatives of the Director.
3
ARTICLE 8
BENEFICIARY DESIGNATION
While covered under this Agreement, the Director may from time to time
designate, in writing, any person or persons, contingently or successively to
whom the Bank shall pay the Director's compensation in the event of the
Director's death. If the Director fails to designate a Beneficiary or if the
Beneficiary designated by the Director predeceases the Director, then benefits
are payable to the Director's estate. If the Beneficiary dies before complete
distribution of the Director's Compensation, then the Bank shall pay the
Director's Compensation to the Director's estate.
ARTICLE 9
INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for his or her affairs because of illness
or accident, or is a minor, any payment due (unless a prior claim therefore
shall have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Transfers to Minors
Act, or to any person deemed by the Bank to have incurred expense for such
person otherwise entitled to payment, in such manner and proportions as the Bank
may determine. Any such payment shall be a complete discharge of the liabilities
of the Bank under this Agreement.
ARTICLE 10
ASSIGNMENT OF RIGHTS
None of the rights to Compensation under this Agreement are assignable
by the Director or any Beneficiary or designee of the Director, and any attempt
to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
4
ARTICLE 11
NAMED FIDUCIARY
(a) The Bank is hereby designated as the Named Fiduciary under this
Agreement. The Named Fiduciary shall have authority to control and manage the
operation and administration of this Agreement, and it shall be responsible for
establishing and carrying out a funding policy and method consistent with the
objectives of this Agreement.
(b) The Bank shall make all determinations as to rights to benefits
under this Agreement. Any decision by the Bank denying a claim made by the
Director or by a Beneficiary for benefits under this Agreement shall be stated
in writing and delivered or mailed to the Director or such Beneficiary. Such
statement shall set forth the specific reasons for the denial, written to the
best of the Bank's ability in a manner that may be understood without legal or
actuarial counsel. In addition, the Bank shall afford a reasonable opportunity
to the Director or the Beneficiary for a full and fair review of the decision
denying such claim.
(c) Subject to the foregoing, the Board of Directors of the Bank shall
have full power and authority to interpret, construe and administer this
Agreement. No member of the Board of Directors of the Bank shall, in any event,
be liable to any person for any action taken or omitted in connection with the
interpretation, construction or administration of this Agreement, so long as
such action or omission to act be made in good faith. In no event, however,
shall the provisions of Article 12 or any other provisions in this Agreement
prevent the Director from seeking legal recourse for any claim under this
Agreement.
ARTICLE 12
FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in
5
whole or part through escrow, trust, or otherwise to create a taxable event to
the Director or the Director's beneficiary.
ARTICLE 13
DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary of the Director,
or any other person claiming through the Director under this agreement, shall be
solely those of an unsecured general creditor of the Bank. The Director, a
designated Beneficiary of the Director, or any other person claiming through the
Director shall only have the right to receive from the Bank those payments as
specified under this Agreement.
ARTICLE 14
ASSETS
The Director, a Director's designated Beneficiary, or any other person
claiming through the Director shall have no rights or interests whatsoever in
any asset of the Bank in connection with the liabilities the Bank has assumed
under this Agreement, or otherwise. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not be
deemed to be held in trust for the benefit of the Director or the Director's
designated Beneficiary, nor shall it be considered security for the performance
of the obligations of the Bank, and it shall be, and remain, a general,
unpledged, and unrestricted asset of the Bank.
ARTICLE 15
AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or in part, by the
mutual written agreement of the Bank and the Director.
6
ARTICLE 16
LAW GOVERNING
This Agreement shall be governed by the laws of the state of
Mississippi.
ARTICLE 17
SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
ARTICLE 18
SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
effective date of this Agreement. If the Director dies during this two year
period due to suicide, the fees deferred plus interest will be paid to the
Director's designated Beneficiary in a single payment. Payment is to be made
within thirty days after the Director's death is declared a suicide by competent
legal authority. Credit shall be given to the Bank for payments made prior to
determination of suicide.
ARTICLE 19
PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
However, upon such postponement, the Bank will increase the total sum payable to
the Director or the Director's Beneficiaries under this Agreement by an
actuarially determined amount.
7
ARTICLE 20
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the subject
matter hereof are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement each
acknowledging a receipt of the fully signed original.
____________________________________
XXXXXXXXX XXXXXXX
THE PEOPLES BANK
BILOXI, MISSISSIPPI
BY:_________________________________
8
THE PEOPLES BANK
BILOXI, MISSISSIPPI
DIRECTORS DEFERRED INCOME AGREEMENT
THIS AGREEMENT is effective on the 1st day of January, 1999, by and
between The Peoples Bank, Biloxi, Mississippi (the "Bank") and Xxx Xxxxx (the
"Director").
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the Bank have contributed significantly to the success
and growth of the Bank;
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future;
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director if re-elected to serve on the Board of Directors;
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, whenever the context so requires,
the capitalized terms shall have the following meanings:
1.1 "Beneficiary" shall mean the person or persons designated by
the Director who may become entitled to receive the
Compensation payable under Article 3, 4, and 5 of this
Agreement (See Article 8).
1.2 "Deferral Period" shall mean the period shown on the Addendum
to this Agreement. An Election to Participate Form signed by
the Director is included and made a part of this Agreement.
1
ARTICLE 2
DEFERRAL OF FEES
The Director has elected to defer receipt of Director's fees to be
earned during the Deferral Period. Once the Director has executed the Election
to Participate Form, a subsequent increase in the director's fees payable due to
an increase in the fee structure shall also be deferred under the provisions of
this Agreement, unless the Director directs the Secretary in writing within 10
days after notification of the increase and prior to the right to receive the
additional fees that such additional fees are not to be deferred. If Director
fees are increased or decreased during the Deferral Period for any reason other
than death of the Director, the compensation payable under Article 3 and Article
5 shall be actuarially determined and evidenced by the Addendum to this
Agreement.
ARTICLE 3
COMPENSATION
The Bank agrees to pay to the Director, if living, and if not, then to
the designated Beneficiary, the Annual Compensation as shown in the Addendum to
this Agreement. Annual Compensation is to be paid in monthly payments, for a
total of one hundred twenty (120) consecutive payments, commencing on the first
business day of the month following the Director's attainment of age 65, or upon
Director's death if such even shall occur before the payments have commenced.
However, in any event, Compensation payable under this Article 3 and the
Addendum to this Agreement shall be recalculated to reflect any increase or
decrease in the future deferral of fees for any reason other than death of the
Director during the Deferral Period.
2
ARTICLE 4
DEATH OF DIRECTOR DURING DEFERRAL PERIOD
If the Director dies during the Deferral Period, the Bank shall pay to
the designated Beneficiary the Annual Compensation as shown in the Addendum to
this Agreement in effect at the time of death.
ARTICLE 5
DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of payments, but prior to
receiving the full one hundred twenty (120) consecutive payments, the Bank shall
continue to pay such payments to the Director's Beneficiary until the total
number of payments made to the Director and the Beneficiary equal one hundred
twenty (120).
ARTICLE 6
STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of this Agreement restrict the right of the
Bank's shareholders to replace the Director or the right of the Director to
terminate service on the Board.
ARTICLE 7
BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and upon the successors and assigns of the Bank, and upon the
heirs and legal representatives of the Director.
3
ARTICLE 8
BENEFICIARY DESIGNATION
While covered under this Agreement, the Director may from time to time
designate, in writing, any person or persons, contingently or successively to
whom the Bank shall pay the Director's compensation in the event of the
Director's death. If the Director fails to designate a Beneficiary or if the
Beneficiary designated by the Director predeceases the Director, then benefits
are payable to the Director's estate. If the Beneficiary dies before complete
distribution of the Director's Compensation, then the Bank shall pay the
Director's Compensation to the Director's estate.
ARTICLE 9
INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for his or her affairs because of illness
or accident, or is a minor, any payment due (unless a prior claim therefore
shall have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Transfers to Minors
Act, or to any person deemed by the Bank to have incurred expense for such
person otherwise entitled to payment, in such manner and proportions as the Bank
may determine. Any such payment shall be a complete discharge of the liabilities
of the Bank under this Agreement.
ARTICLE 10
ASSIGNMENT OF RIGHTS
None of the rights to Compensation under this Agreement are assignable
by the Director or any Beneficiary or designee of the Director, and any attempt
to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
4
ARTICLE 11
NAMED FIDUCIARY
(a) The Bank is hereby designated as the Named Fiduciary under this
Agreement. The Named Fiduciary shall have authority to control and manage the
operation and administration of this Agreement, and it shall be responsible for
establishing and carrying out a funding policy and method consistent with the
objectives of this Agreement.
(b) The Bank shall make all determinations as to rights to benefits
under this Agreement. Any decision by the Bank denying a claim made by the
Director or by a Beneficiary for benefits under this Agreement shall be stated
in writing and delivered or mailed to the Director or such Beneficiary. Such
statement shall set forth the specific reasons for the denial, written to the
best of the Bank's ability in a manner that may be understood without legal or
actuarial counsel. In addition, the Bank shall afford a reasonable opportunity
to the Director or the Beneficiary for a full and fair review of the decision
denying such claim.
(c) Subject to the foregoing, the Board of Directors of the Bank shall
have full power and authority to interpret, construe and administer this
Agreement. No member of the Board of Directors of the Bank shall, in any event,
be liable to any person for any action taken or omitted in connection with the
interpretation, construction or administration of this Agreement, so long as
such action or omission to act be made in good faith. In no event, however,
shall the provisions of Article 12 or any other provisions in this Agreement
prevent the Director from seeking legal recourse for any claim under this
Agreement.
ARTICLE 12
FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in
5
whole or part through escrow, trust, or otherwise to create a taxable event to
the Director or the Director's beneficiary.
ARTICLE 13
DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary of the Director,
or any other person claiming through the Director under this agreement, shall be
solely those of an unsecured general creditor of the Bank. The Director, a
designated Beneficiary of the Director, or any other person claiming through the
Director shall only have the right to receive from the Bank those payments as
specified under this Agreement.
ARTICLE 14
ASSETS
The Director, a Director's designated Beneficiary, or any other person
claiming through the Director shall have no rights or interests whatsoever in
any asset of the Bank in connection with the liabilities the Bank has assumed
under this Agreement, or otherwise. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not be
deemed to be held in trust for the benefit of the Director or the Director's
designated Beneficiary, nor shall it be considered security for the performance
of the obligations of the Bank, and it shall be, and remain, a general,
unpledged, and unrestricted asset of the Bank.
ARTICLE 15
AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or in part, by the
mutual written agreement of the Bank and the Director.
6
ARTICLE 16
LAW GOVERNING
This Agreement shall be governed by the laws of the state of
Mississippi.
ARTICLE 17
SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
ARTICLE 18
SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
effective date of this Agreement. If the Director dies during this two year
period due to suicide, the fees deferred plus interest will be paid to the
Director's designated Beneficiary in a single payment. Payment is to be made
within thirty days after the Director's death is declared a suicide by competent
legal authority. Credit shall be given to the Bank for payments made prior to
determination of suicide.
ARTICLE 19
PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
However, upon such postponement, the Bank will increase the total sum payable to
the Director or the Director's Beneficiaries under this Agreement by an
actuarially determined amount.
7
ARTICLE 20
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the subject
matter hereof are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement each
acknowledging a receipt of the fully signed original.
------------------------------------
XXX XXXXX
THE PEOPLES BANK
BILOXI, MISSISSIPPI
BY:
---------------------------------
8
THE PEOPLES BANK
BILOXI, MISSISSIPPI
DIRECTORS DEFERRED INCOME AGREEMENT
THIS AGREEMENT is effective on the 1st day of January, 1996, by and
between The Peoples Bank, Biloxi, Mississippi (the "Bank") and Xxxx X. Page (the
"Director").
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the Bank have contributed significantly to the success
and growth of the Bank;
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future;
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director if re-elected to serve on the Board of Directors;
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, whenever the context so requires,
the capitalized terms shall have the following meanings:
1.1 "Beneficiary" shall mean the person or persons designated by the
Director who may become entitled to receive the Compensation payable
under Articles 3, 4, and 5 of this Agreement (See Article 8).
1
1.2 "Deferral Period" shall mean the date shown on the Addendum to this
Agreement. An Election to Participate Form signed by the Director is
included and made a part of this Agreement.
ARTICLE 2
DEFERRAL OF FEES
The Director has elected to defer receipt of Director's fees to be
earned during the Deferral Period. Once the Director has executed the Election
to Participate Form, a subsequent increase in the director's fees payable due to
an increase in the fee structure shall also be deferred under the provisions of
this Agreement, unless the Director directs the Secretary in writing within 10
days after notification of the increase and prior to the right to receive the
additional fees that such additional fees are not to be deferred. If Director
fees are increased or decreased during the Deferral Period for any reason other
than death of the Director, the compensation payable under Article 3 and Article
5 shall be actuarially determined and evidenced by the Addendum to this
Agreement.
ARTICLE 3
COMPENSATION
The Bank agrees to pay to the Director, if living, and if not, then to
the designated Beneficiary, the Annual Compensation as shown in the Addendum to
this Agreement. Annual Compensation is to be paid in monthly payments, for a
total of one hundred twenty (120) consecutive payments, commencing on the first
business day of the month following the Director's attainment of age 65, or upon
Director's death if such event shall occur before the payments have commenced.
However, in any event, Compensation payable under this Article 3 and the
Addendum to this Agreement shall be recalculated to reflect any increase or
decrease in future deferral of fees for any reason other than death of the
Director during the Deferral Period.
2
ARTICLE 4
DEATH OF DIRECTOR DURING DEFERRAL
If the Director dies during the Deferral Period, the Bank shall pay to
the designated Beneficiary the Annual Compensation as shown in the Addendum to
this Agreement in effect at the time of death.
ARTICLE 5
DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of payments, but prior to
receiving the full one hundred twenty (120) consecutive payments, the Bank shall
continue to pay such payments to the Director's Beneficiary until the total
number of payments made to the Director and the Beneficiary equal one hundred
twenty (120).
ARTICLE 6
STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of this Agreement restrict the right of the
Bank's shareholders to replace the Director or the right of the Director to
terminate service on the Board.
ARTICLE 7
BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and upon the successors and assigns of the Bank, and upon the
heirs and legal representatives of the Director.
ARTICLE 8
BENEFICIARY DESIGNATION
While covered under this Agreement, the Director may from time to time
designate, in writing, any person or entity, contingently or successively to
whom the Bank shall pay the
3
Director's compensation in the event of the Director's death. If the Director
fails to designate a Beneficiary or if the Beneficiary predeceases the Director,
then benefits are payable to the Director's estate. If the Beneficiary dies
before complete distribution of the Director's benefits, then the Bank shall pay
the Director's Compensation to the Director's estate.
ARTICLE 9
INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for his or her affairs because of illness
or accident, or is a minor, any payment due (unless a prior claim therefore
shall have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Transfers to Minors
Act, or to any person deemed by the Bank to have incurred expense for such
person otherwise entitled to payment, in such manner and proportions as the Bank
may determine. Any such payment shall be a complete discharge of the liabilities
of the Bank under this Agreement.
ARTICLE 10
ASSIGNMENT OF RIGHTS
None of the rights to Compensation under this Agreement are assignable
by the Director or any Beneficiary or designee of the Director, and any attempt
to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
ARTICLE 11
NAMED FIDUCIARY
(a) The Bank is hereby designated as the Named Fiduciary
under this Agreement. The Named Fiduciary shall have authority to
control and manage the operation and
4
administration of this Agreement, and it shall be responsible for
establishing and carrying out a funding policy and method consistent
with the objectives of this Agreement.
(b) The Bank shall make all determinations as to rights
to benefits under this Agreement. Any decision by the Bank denying a
claim made by the Director or by a Beneficiary for benefits under this
Agreement shall be stated in writing and delivered or mailed to the
Director or such Beneficiary. Such statement shall set forth the
specific reasons for the denial, written to the best of the Bank's
ability in a manner that may be understood without legal or actuarial
counsel. In addition, the Bank shall afford a reasonable opportunity to
the Director or the Beneficiary for a full and fair review of the
decision denying such claim.
(c) Subject to the foregoing, the Board of Directors of
the Bank shall have full power and authority to interpret, construe and
administer this Agreement. No member of the Board of Directors of the
Bank shall, in any event, be liable to any person for any action taken
or omitted in connection with the interpretation, construction or
administration of this Agreement, so long as such action or omission to
act be made in good faith. In no event, however, shall the provisions
of Article 12 or any other provisions in this Agreement prevent the
Director from seeking legal recourse for any claim under this
Agreement.
ARTICLE 12
FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in whole or part through escrow, trust, or
otherwise to create a taxable event to the Director or the Director's
beneficiary.
5
ARTICLE 13
DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary of the Director,
or any other person claiming through the Director under this agreement, shall be
solely those of an unsecured general creditor of the Bank. The Director, a
designated Beneficiary of the Director, or any other person claiming through the
Director shall only have the right to receive from the Bank those payments as
specified under this Agreement.
ARTICLE 14
ASSETS
The Director, a Director's designated Beneficiary, or any other person
claiming through the Director shall have no rights or interests whatsoever in
any asset of the Bank in connection with the liabilities the Bank has assumed
under this Agreement, or otherwise. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not be
deemed to be held in trust for the benefit of the Director or the Director's
designated Beneficiary, nor shall it be considered security for the performance
of the obligations of the Bank, and it shall be, and remain, a general,
unpledged, and unrestricted asset of the Bank.
ARTICLE 15
AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or in part, by the
mutual written agreement of the Bank and the Director.
ARTICLE 16
LAW GOVERNING
This Agreement shall be governed by the laws of the state of
Mississippi.
6
ARTICLE 17
SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
ARTICLE 18
SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
effective date of this Agreement. If the Director dies during this two year
period due to suicide, the fees deferred plus interest will be paid to the
Director's designated Beneficiary in a single payment. Payment is to be made
within thirty days after the Director's death is declared a suicide by competent
legal authority. Credit shall be given to the Bank for payments made prior to
determination of suicide.
ARTICLE 19
PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
However, upon such postponement, the Bank will increase the total sum payable to
the Director or the Director's Beneficiaries under this Agreement by an
actuarially determined amount.
7
ARTICLE 20
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the subject
matter hereof are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement each
acknowledging a receipt of the fully signed original.
-----------------------------------
XXXX X. PAGE
THE PEOPLES BANK
BILOXI, MISSISSIPPI
BY:
---------------------------------
8
THE PEOPLES BANK
BILOXI, MISSISSIPPI
DIRECTORS DEFERRED INCOME AGREEMENT
THIS AGREEMENT is effective on the 1st day of January, 1996, by and
between The Peoples Bank, Biloxi, Mississippi (the "Bank") and Xxxxxx X.
Xxxxxxxx (the "Director") and supersedes the existing Director Deferred Income
Agreement between the parties.
WITNESSETH:
WHEREAS, the Bank recognizes that the competent and faithful efforts of
the Director on behalf of the Bank have contributed significantly to the success
and growth of the Bank;
WHEREAS, the Bank values the efforts, abilities and accomplishments of
the Director and recognizes the Director's services will substantially
contribute to the continued growth and profits in the future;
WHEREAS, the Bank desires to compensate the Director and retain the
services of the Director if re-elected to serve on the Board of Directors;
WHEREAS, the Director, in consideration of the foregoing, agrees to
continue to serve as a Director, if re-elected; and
WHEREAS, the Director has agreed to defer receipt of fees to be earned
in the future.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, whenever the context so requires,
the capitalized terms shall have the following meanings:
1.1 "Beneficiary" shall mean the person or persons designated by
the Director who may become entitled to receive the
Compensation payable under Article 3, 4, and 5 of this
Agreement (See Article 8).
1
1.2 "Deferral Period" shall mean the period shown on the Addendum
to this Agreement. An Election to Participate Form signed by
the Director is included and made a part of this Agreement.
ARTICLE 2
DEFERRAL OF FEES
The Director has elected to defer receipt of Director's fees to be
earned during the Deferral Period. Once the Director has executed the Election
to Participate Form, a subsequent increase in the director's fees payable due to
an increase in the fee structure shall also be deferred under the provisions of
this Agreement, unless the Director directs the Secretary in writing within 10
days after notification of the increase and prior to the right to receive the
additional fees that such additional fees are not to be deferred. If Director
fees are increased or decreased during the Deferral Period for any reason other
than death of the Director, the compensation payable under Article 3 and Article
5 shall be actuarially determined and evidenced by the Addendum to this
Agreement.
ARTICLE 3
COMPENSATION
The Bank agrees to pay to the Director, if living, and if not, then to
the designated Beneficiary, the Annual Compensation as shown in the Addendum to
this Agreement. Annual Compensation is to be paid in monthly payments, for a
total of one hundred twenty (120) consecutive payments, commencing on the first
business day of the month following the Director's attainment of age 65, or upon
Director's death if such event shall occur before the payments have commenced.
However, in any event, Compensation payable under this Article 3 and the
Addendum to this Agreement shall be recalculated to reflect any increase or
decrease in the future deferral of fees for any reason other than death of the
Director during the Deferral Period.
2
ARTICLE 4
DEATH OF DIRECTOR DURING DEFERRAL PERIOD
If the Director dies during the Deferral Period, the Bank shall pay to
the designated Beneficiary the Annual Compensation as shown in the Addendum to
this Agreement in effect at the time of death.
ARTICLE 5
DEATH OF DIRECTOR AFTER BEGINNING OF PAYMENTS
If the Director dies after the beginning of payments, but prior to
receiving the full one hundred twenty (120) consecutive payments, the Bank shall
continue to pay such payments to the Director's Beneficiary until the total
number of payments made to the Director and the Beneficiary equal one hundred
twenty (120).
ARTICLE 6
STATUS OF AGREEMENT
This Agreement does not constitute a contract of employment between the
parties, nor shall any provision of this Agreement restrict the right of the
Bank's shareholders to replace the Director or the right of the Director to
terminate service on the Board.
ARTICLE 7
BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and upon the successors and assigns of the Bank, and upon the
heirs and legal representatives of the Director.
3
ARTICLE 8
BENEFICIARY DESIGNATION
While covered under this Agreement, the Director may from time to time
designate, in writing, any person or persons, contingently or successively to
whom the Bank shall pay the Director's compensation in the event of the
Director's death. If the Director fails to designate a Beneficiary or if the
Beneficiary designated by the Director predeceases the Director, then benefits
are payable to the Director's estate. If the Beneficiary dies before complete
distribution of the Director's Compensation, then the Bank shall pay the
Director's Compensation to the Director's estate.
ARTICLE 9
INCOMPETENCY
If the Bank shall find that any person to whom any payment is payable
under this Agreement is unable to care for his or her affairs because of illness
or accident, or is a minor, any payment due (unless a prior claim therefore
shall have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Transfers to Minors
Act, or to any person deemed by the Bank to have incurred expense for such
person otherwise entitled to payment, in such manner and proportions as the Bank
may determine. Any such payment shall be a complete discharge of the liabilities
of the Bank under this Agreement.
ARTICLE 10
ASSIGNMENT OF RIGHTS
None of the rights to Compensation under this Agreement are assignable
by the Director or any Beneficiary or designee of the Director, and any attempt
to anticipate, sell, transfer, assign, pledge, encumber, or change the
Director's right to receive Compensation shall be void.
4
ARTICLE 11
NAMED FIDUCIARY
(a) The Bank is hereby designated as the Named Fiduciary under this
Agreement. The Named Fiduciary shall have authority to control and manage the
operation and administration of this Agreement, and it shall be responsible for
establishing and carrying out a funding policy and method consistent with the
objectives of this Agreement.
(b) The Bank shall make all determinations as to rights to benefits
under this Agreement. Any decision by the Bank denying a claim made by the
Director or by a Beneficiary for benefits under this Agreement shall be stated
in writing and delivered or mailed to the Director or such Beneficiary. Such
statement shall set forth the specific reasons for the denial, written to the
best of the Bank's ability in a manner that may be understood without legal or
actuarial counsel. In addition, the Bank shall afford a reasonable opportunity
to the Director or the Beneficiary for a full and fair review of the decision
denying such claim.
(c) Subject to the foregoing, the Board of Directors of the Bank shall
have full power and authority to interpret, construe and administer this
Agreement. No member of the Board of Directors of the Bank shall, in any event,
be liable to any person for any action taken or omitted in connection with the
interpretation, construction or administration of this Agreement, so long as
such action or omission to act be made in good faith. In no event, however,
shall the provisions of Article 12 or any other provisions in this Agreement
prevent the Director from seeking legal recourse for any claim under this
Agreement.
ARTICLE 12
FUNDING
The Bank's obligations under this Agreement shall be an unfunded and
unsecured promise to pay. The Bank shall not be obligated under any
circumstances to fund or otherwise secure its obligations under this Agreement.
Under no circumstances will the Bank, without the consent of the Director, cause
this Agreement to be directly funded in
5
whole or part through escrow, trust, or otherwise to create a taxable event to
the Director or the Director's beneficiary.
ARTICLE 13
DIRECTOR RIGHTS
The rights of the Director, any designated Beneficiary of the Director,
or any other person claiming through the Director under this agreement, shall be
solely those of an unsecured general creditor of the Bank. The Director, a
designated Beneficiary of the Director, or any other person claiming through the
Director shall only have the right to receive from the Bank those payments as
specified under this Agreement.
ARTICLE 14
ASSETS
The Director, a Director's designated Beneficiary, or any other person
claiming through the Director shall have no rights or interests whatsoever in
any asset of the Bank in connection with the liabilities the Bank has assumed
under this Agreement, or otherwise. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not be
deemed to be held in trust for the benefit of the Director or the Director's
designated Beneficiary, nor shall it be considered security for the performance
of the obligations of the Bank, and it shall be, and remain, a general,
unpledged, and unrestricted asset of the Bank.
ARTICLE 15
AMENDMENT
During the lifetime of the Director and prior to retirement, this
Agreement may be amended or revoked at any time, in whole or in part, by the
mutual written agreement of the Bank and the Director.
6
ARTICLE 16
LAW GOVERNING
This Agreement shall be governed by the laws of the state of
Mississippi.
ARTICLE 17
SEVERABILITY
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then (1) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
ARTICLE 18
SUICIDE
Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within two years after the
effective date of this Agreement. If the Director dies during this two year
period due to suicide, the fees deferred plus interest will be paid to the
Director's designated Beneficiary in a single payment. Payment is to be made
within thirty days after the Director's death is declared a suicide by competent
legal authority. Credit shall be given to the Bank for payments made prior to
determination of suicide.
ARTICLE 19
PERIOD OF ECONOMIC HARDSHIP
If, in any year, payments made under this Agreement would, in the sole
judgment of the Board of Directors, create economic hardship for the Bank's
depositors, the Board of Directors has full authority to postpone such payments.
However, upon such postponement, the Bank will increase the total sum payable to
the Director or the Director's Beneficiaries under this Agreement by an
actuarially determined amount.
7
ARTICLE 20
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the subject
matter hereof are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement each
acknowledging a receipt of the fully signed original.
___________________________________
XXXXXX X. XXXXXXXX
THE PEOPLES BANK
BILOXI, MISSISSIPPI
BY: ________________________________
8
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT, effective as of January 1, 2003 (the "Effective Date"),
is made by and between The Peoples Bank, with its principal office located in
Biloxi, Mississippi (the "Company"), and Xxx Xxxxxxxx (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the Director's benefits from the Company's
general assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the meanings specified:
1.1.1 "Anniversary Date" means December 31st of each year.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended.
1.1.3 "Deferral Account" means the Company's accounting of
the Director's accumulated Deferrals plus accrued interest.
1.1.4 "Deferrals" means the amount of the Director's Fees
which the Director elects to defer according to this Agreement.
1.1.5 "Election Form" means the Form attached as Exhibit A.
1.1.6 "Fees" means the total fees payable to the Director
during a Plan Year.
1.1.7 "Normal Retirement Age" means age sixty-five (65).
1.1.8 "Normal Retirement Date" means the later of the
Normal Retirement Age or Termination of Service.
1.1.9 "Plan Year" means each twelve (12) consecutive month
period beginning on January 1st of each year and ending on December
31st of each year.
1.1.10 "Termination of Service" means that the Director
ceases to be a member of the Company's Board of Directors for any
reason whatsoever other than by reason of a leave of absence that is
approved by the Company.
ARTICLE 2
DEFERRAL ELECTION
2.1 Initial Election. The Director shall make an initial deferral
election under this Agreement by filing with the Company a signed Election Form
within 30 days after the Effective Date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred and shall be effective to
defer only Fees earned after the date the Election Form is received by the
Company.
2.2 Election Changes
2.2.1 Generally. Upon Company approval, the Director may
modify the amount of Fees to be deferred annually by filing a new
Election Form with the Company prior to the beginning of the Plan Year
in which the Fees are to be deferred. The modified deferral election
shall not be effective until the calendar year following the year in
which the subsequent Election Form is received and approved by the
Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director
occurs, the Director, by written instructions to the Company, may
reduce future deferrals under this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account on its books for the Director and shall credit to the Deferral
Account the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of
the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On each Anniversary Date and immediately
prior to the payment of any benefits interest shall accrue on the
account balance at an annual rate of ten percent (10.00%), compounded
annually. After payments have commenced, interest shall accrue on the
account balance at an annual rate of seven and one-half percent (7.5%),
compounded monthly.
3.2 Statement of Accounts. The Company shall provide to the
Director, within 120 days after each Anniversary Date, a statement setting forth
the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The Deferral
Account is not a trust fund of any kind. The Director is a general unsecured
creditor of the Company for the payment of benefits. The
2
benefits represent the mere Company promise to pay such benefits. The Director's
rights are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by the
Director's creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date the
Company shall pay to the Director the benefit described in this Section 4.1 in
lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1
is the Deferral Account balance at the Director's Normal Retirement
Date.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in one hundred twenty (120) equal monthly installments
commencing on the first day of the month following the Director's
Normal Retirement Date. In determining the amount of the equal monthly
installments the Company shall credit interest pursuant to Section
3.1.2 on the remaining account balance during any applicable
installment period.
4.2 Termination of Service. Upon Termination of Service prior to
the Normal Retirement Age, the Company shall pay to the Director the
benefit described in this Section 4.2 in lieu of any other benefit
under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of
Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a single lump sum within sixty (60) days of
Termination of Service.
4.3 Hardship Distribution. Upon the Board of Director's
determination (following petition by the Director) that the Director has
suffered an unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 Death During Active Service. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1 in lieu of any other
benefit under this Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is
the greater of: (i) the Deferral Account balance on the Director's
death; or, (ii) One Hundred Twenty Four Thousand Six Hundred and No/100
Dollars ($124,600.00).
3
5.1.2 Payment of Benefit. The Company shall pay the amount
stated in Section 5.1.1 to the beneficiary in one hundred twenty (120)
equal monthly installments commencing on the first day of the month
following the Director's death. In determining the amount of the equal
monthly installments the Company shall credit interest pursuant to
Section 3.1.2 on the remaining account balance during any applicable
installment period.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before receiving all
such payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
5.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Director's beneficiary that the Director was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Director's death.
ARTICLE 6
BENEFICIARIES
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The Director may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Director and
accepted by the Company during the Director's lifetime. The Director's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Director or if the Director names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Director dies without a valid
beneficiary designation, all payments shall be made to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
4
ARTICLE 7
GENERAL LIMITATIONS
7.1 Suicide or Misstatement. The Company shall not pay any death
benefit under this Agreement exceeding the Deferral Account if the Director
commits suicide within two years after the date of this Agreement, or if the
Director has made any material misstatement of fact on any application for life
insurance purchased by the Company.
7.2 Excess Parachute Payment. Notwithstanding any provision of
this Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 Claims Procedure. The Company shall notify any person or
entity that makes a claim against the Agreement (the "Claimant") in writing,
within 90 days of Claimant's written application for benefits, of his or her
eligibility or non-eligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the Claimant
to perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the Claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall notify the
Claimant of the special circumstances and the date by which a decision is
expected to be made, and may extend the time for up to an additional 90 days.
8.2 Review Procedure. If the Claimant is determined by the Company
not to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall notify
the Claimant of its decision in writing within the 60-day period, stating
specifically the basis of its decision, written in a manner calculated to be
understood by the Claimant and the specific provisions of the Agreement on which
the decision is based. If, because of the need for a hearing, the 60-day period
is not sufficient, the decision may be deferred for up to another 60 days at the
election of the Company, but notice of this deferral shall be given to the
Claimant.
5
ARTICLE 9
AMENDMENTS AND TERMINATION
9.1 Agreed Amendment or Termination. Subject to Section 9.2, this
Agreement may be amended or terminated only by a written agreement signed by the
Company and the Director.
9.2 Amendment or Termination by Operation of Law. The Company may
amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would (i) cause
benefits to be taxable to the Director prior to actual receipt, or (ii) result
in significant financial penalties or other significantly detrimental
ramifications to the Company (other than the financial impact of paying the
benefits). In no event shall this Agreement be terminated under this Section 9.2
without payment to the Director of the Deferral Account balance within in a
single lump sum sixty (60) days of a termination of this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain in the service of
the Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain in the service of the
Company nor interfere with the Director's right to terminate services at any
time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by Mississippi state law, except to the extent preempted by the laws
of the United States of America.
10.6 Unfunded Arrangement. The Director and the Director's
beneficiary are general unsecured creditors of the Company for the payment of
benefits under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on the
Director's life is a general asset of the Company to which the Director and the
Director's beneficiary have no preferred or secured claim.
10.7 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm, or
6
person unless such succeeding or continuing company, firm, or person agrees to
assume and discharge the obligations of the Company under this Agreement.
10.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Director as to the subject matter hereof.
No rights are granted to the Director by virtue of this Agreement other than
those specifically set forth herein.
10.9 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting
for the Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement.
10.10 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
10.11 Full Obligation. Notwithstanding any provision to the
contrary, when the Company has paid either the lifetime benefits or death
benefits as appropriate under any section of the Agreement, the Company has
completed its obligation to the Director.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR:
________________________________________ Date:_________________________
XXX XXXXXXXX
THE PEOPLES BANK
By: ____________________________________ Date:__________________________
Its: ___________________________________
7
EXHIBIT A
TO
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
DEFERRAL ELECTION
I elect to defer my Fees received under this Agreement with the Company, as
follows:
AMOUNT OF DEFERRAL DURATION
--------------------------------- ----------------------------------
[INITIAL AND COMPLETE ONE] [INITIAL ONE]
_____ I elect to defer _________% ______ One Year only
of my Fees.
_____ I elect to defer $_________ ______ For ______ [INSERT
of my annual Fees. NUMBER] Years
_____ I elect not to defer any of ______ Until Normal
my Fees. Retirement Age
I understand that I may change the amount and duration of my deferrals by filing
a new election form with the Company; provided, however, that any subsequent
election will not be effective until the calendar year following the year in
which the new election is received by the Company.
Signature ____________________________________
XXX XXXXXXXX
Date ____________________________
Accepted by the Company this ________ day of ___________________, 20___.
By __________________________________________
Title ______________________________
8
BENEFICIARY DESIGNATION
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
I designate the following as beneficiary of benefits under this Agreement
payable following my death:
Primary: _______________________________________________________________________
________________________________________________________________________________
Contingent: ____________________________________________________________________
________________________________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(s)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature _______________________
XXX XXXXXXXX
Date ____________________________
Accepted by the Company this ________ day of ___________________, 20____.
By __________________________________________
Title ________________________________
9
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT, effective as of January 1, 2003 (the "Effective Date"),
is made by and between The Peoples Bank, with its principal office located in
Biloxi, Mississippi (the "Company"), and Xxxx Xxxxx (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the Director's benefits from the Company's
general assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the meanings specified:
1.1.1 "Anniversary Date" means December 31st of each year.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended.
1.1.3 "Deferral Account" means the Company's accounting of
the Director's accumulated Deferrals plus accrued interest.
1.1.4 "Deferrals" means the amount of the Director's Fees
which the Director elects to defer according to this Agreement.
1.1.5 "Election Form" means the Form attached as Exhibit A.
1.1.6 "Fees" means the total fees payable to the Director
during a Plan Year.
1.1.7 "Normal Retirement Age" means age sixty-five (65).
1.1.8 "Normal Retirement Date" means the later of the
Normal Retirement Age or Termination of Service.
1.1.9 "Plan Year" means each twelve (12) consecutive month
period beginning on January 1st of each year and ending on December
31st of each year.
1.1.10 "Termination of Service" means that the Director
ceases to be a member of the Company's Board of Directors for any
reason whatsoever other than by reason of a leave of absence that is
approved by the Company.
ARTICLE 2
DEFERRAL ELECTION
2.1 Initial Election. The Director shall make an initial deferral
election under this Agreement by filing with the Company a signed Election Form
within 30 days after the Effective Date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred and shall be effective to
defer only Fees earned after the date the Election Form is received by the
Company.
2.2 Election Changes
2.2.1 Generally. Upon Company approval, the Director may
modify the amount of Fees to be deferred annually by filing a new
Election Form with the Company prior to the beginning of the Plan Year
in which the Fees are to be deferred. The modified deferral election
shall not be effective until the calendar year following the year in
which the subsequent Election Form is received and approved by the
Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director
occurs, the Director, by written instructions to the Company, may
reduce future deferrals under this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account on its books for the Director and shall credit to the Deferral
Account the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of
the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On each Anniversary Date and immediately
prior to the payment of any benefits interest shall accrue on the
account balance at an annual rate of ten percent (10.00%), compounded
annually. After payments have commenced, interest shall accrue on the
account balance at an annual rate of seven and one-half percent (7.5%),
compounded monthly.
3.2 Statement of Accounts. The Company shall provide to the
Director, within 120 days after each Anniversary Date, a statement setting forth
the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The Deferral
Account is not a trust fund of any kind. The Director is a general unsecured
creditor of the Company for the payment of benefits. The
2
benefits represent the mere Company promise to pay such benefits. The Director's
rights are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by the
Director's creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date the
Company shall pay to the Director the benefit described in this Section 4.1 in
lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1
is the Deferral Account balance at the Director's Normal Retirement
Date.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in one hundred twenty (120) equal monthly installments
commencing on the first day of the month following the Director's
Normal Retirement Date. In determining the amount of the equal monthly
installments the Company shall credit interest pursuant to Section
3.1.2 on the remaining account balance during any applicable
installment period.
4.2 Termination of Service. Upon Termination of Service prior to
the Normal Retirement Age, the Company shall pay to the Director the benefit
described in this Section 4.2 in lieu of any other benefit under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of
Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a single lump sum within sixty (60) days of
Termination of Service.
4.3 Hardship Distribution. Upon the Board of Director's
determination (following petition by the Director) that the Director
has suffered an unforeseeable financial emergency as described in
Section 2.2.2, the Company shall distribute to the Director all or a
portion of the Deferral Account balance as determined by the Company,
but in no event shall the distribution be greater than is necessary to
relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 Death During Active Service. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1 in lieu of any other
benefit under this Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is
the greater of: (i) the Deferral Account balance on the Director's
death; or, (ii) Two Hundred Thirty Four Thousand Three Hundred and
No/100 Dollars ($234,300.00).
3
5.1.2 Payment of Benefit. The Company shall pay the amount
stated in Section 5.1.1 to the beneficiary in one hundred twenty (120)
equal monthly installments commencing on the first day of the month
following the Director's death. In determining the amount of the equal
monthly installments the Company shall credit interest pursuant to
Section 3.1.2 on the remaining account balance during any applicable
installment period.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before receiving all
such payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
5.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Director's beneficiary that the Director was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Director's death.
ARTICLE 6
BENEFICIARIES
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The Director may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Director and
accepted by the Company during the Director's lifetime. The Director's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Director or if the Director names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Director dies without a valid
beneficiary designation, all payments shall be made to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
4
ARTICLE 7
GENERAL LIMITATIONS
7.1 Suicide or Misstatement. The Company shall not pay any death
benefit under this Agreement exceeding the Deferral Account if the Director
commits suicide within two years after the date of this Agreement, or if the
Director has made any material misstatement of fact on any application for life
insurance purchased by the Company.
7.2 Excess Parachute Payment. Notwithstanding any provision of
this Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 Claims Procedure. The Company shall notify any person or
entity that makes a claim against the Agreement (the "Claimant") in writing,
within 90 days of Claimant's written application for benefits, of his or her
eligibility or non-eligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the Claimant
to perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the Claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall notify the
Claimant of the special circumstances and the date by which a decision is
expected to be made, and may extend the time for up to an additional 90 days.
8.2 Review Procedure. If the Claimant is determined by the Company
not to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall notify
the Claimant of its decision in writing within the 60-day period, stating
specifically the basis of its decision, written in a manner calculated to be
understood by the Claimant and the specific provisions of the Agreement on which
the decision is based. If, because of the need for a hearing, the 60-day period
is not sufficient, the decision may be deferred for up to another 60 days at the
election of the Company, but notice of this deferral shall be given to the
Claimant.
5
ARTICLE 9
AMENDMENTS AND TERMINATION
9.1 Agreed Amendment or Termination. Subject to Section 9.2, this
Agreement may be amended or terminated only by a written agreement signed by the
Company and the Director.
9.2 Amendment or Termination by Operation of Law. The Company may
amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would (i) cause
benefits to be taxable to the Director prior to actual receipt, or (ii) result
in significant financial penalties or other significantly detrimental
ramifications to the Company (other than the financial impact of paying the
benefits). In no event shall this Agreement be terminated under this Section 9.2
without payment to the Director of the Deferral Account balance within in a
single lump sum sixty (60) days of a termination of this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain in the service of
the Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain in the service of the
Company nor interfere with the Director's right to terminate services at any
time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by Mississippi state law, except to the extent preempted by the laws
of the United States of America.
10.6 Unfunded Arrangement. The Director and the Director's
beneficiary are general unsecured creditors of the Company for the payment of
benefits under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on the
Director's life is a general asset of the Company to which the Director and the
Director's beneficiary have no preferred or secured claim.
10.7 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm, or
6
person unless such succeeding or continuing company, firm, or person agrees to
assume and discharge the obligations of the Company under this Agreement.
10.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Director as to the subject matter hereof.
No rights are granted to the Director by virtue of this Agreement other than
those specifically set forth herein.
10.9 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting
for the Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement.
10.10 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
10.11 Full Obligation. Notwithstanding any provision to the
contrary, when the Company has paid either the lifetime benefits or death
benefits as appropriate under any section of the Agreement, the Company has
completed its obligation to the Director.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR:
________________________________________ Date: ________________________
XXXX XXXXX
THE PEOPLES BANK
By: ____________________________________ Date: _________________________
Its: __________________________________
7
EXHIBIT A
TO
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
DEFERRAL ELECTION
I elect to defer my Fees received under this Agreement with the Company, as
follows:
AMOUNT OF DEFERRAL DURATION
----------------------------------- --------------------------
[INITIAL AND COMPLETE ONE] [INITIAL ONE]
_____ I elect to defer ___________% ______ One Year only
of my Fees.
_____ I elect to defer $__________ ______ For ______ [INSERT
of my annual Fees. NUMBER] Years
_____ I elect not to defer any of _____ Until Normal
my Fees. Retirement Age
I understand that I may change the amount and duration of my deferrals by filing
a new election form with the Company; provided, however, that any subsequent
election will not be effective until the calendar year following the year in
which the new election is received by the Company.
Signature __________________________________
XXXX XXXXX
Date ____________________________
Accepted by the Company this ________ day of ___________________, 20___.
By __________________________________________
Title ______________________________
8
BENEFICIARY DESIGNATION
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
I designate the following as beneficiary of benefits under this Agreement
payable following my death:
Primary: ______________________________________________________________________
_______________________________________________________________________________
Contingent: __________________________________________________________________
_______________________________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(s)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature __________________________________
XXXX XXXXX
Date _____________________________
Accepted by the Company this ________ day of ___________________, 20____.
By __________________________________________
Title ________________________________
9
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT, effective as of January 1, 2003 (the "Effective Date"),
is made by and between The Peoples Bank, with its principal office located in
Biloxi, Mississippi (the "Company"), and Xxx X. Xxxxx (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the Director's benefits from the Company's
general assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the meanings specified:
1.1.1 "Anniversary Date" means December 31st of each year.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended.
1.1.3 "Deferral Account" means the Company's accounting of
the Director's accumulated Deferrals plus accrued interest.
1.1.4 "Deferrals" means the amount of the Director's Fees
which the Director elects to defer according to this Agreement.
1.1.5 "Election Form" means the Form attached as Exhibit A.
1.1.6 "Fees" means the total fees payable to the Director
during a Plan Year.
1.1.7 "Normal Retirement Age" means age sixty-five (65).
1.1.8 "Normal Retirement Date" means the later of the
Normal Retirement Age or Termination of Service.
1.1.9 "Plan Year" means each twelve (12) consecutive month
period beginning on January 1st of each year and ending on December
31st of each year.
1.1.10 "Termination of Service" means that the Director
ceases to be a member of the Company's Board of Directors for any
reason whatsoever other than by reason of a leave of absence that is
approved by the Company.
ARTICLE 2
DEFERRAL ELECTION
2.1 Initial Election. The Director shall make an initial deferral
election under this Agreement by filing with the Company a signed Election Form
within 30 days after the Effective Date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred and shall be effective to
defer only Fees earned after the date the Election Form is received by the
Company.
2.2 Election Changes
2.2.1 Generally. Upon Company approval, the Director may
modify the amount of Fees to be deferred annually by filing a new
Election Form with the Company prior to the beginning of the Plan Year
in which the Fees are to be deferred. The modified deferral election
shall not be effective until the calendar year following the year in
which the subsequent Election Form is received and approved by the
Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director
occurs, the Director, by written instructions to the Company, may
reduce future deferrals under this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account on its books for the Director and shall credit to the Deferral
Account the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of
the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On each Anniversary Date and immediately
prior to the payment of any benefits interest shall accrue on the
account balance at an annual rate of ten percent (10.00%), compounded
annually. After payments have commenced, interest shall accrue on the
account balance at an annual rate of seven and one-half percent (7.5%),
compounded monthly.
3.2 Statement of Accounts. The Company shall provide to the
Director, within 120 days after each Anniversary Date, a statement setting forth
the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The Deferral
Account is not a trust fund of any kind. The Director is a general unsecured
creditor of the Company for the payment of benefits. The
2
benefits represent the mere Company promise to pay such benefits. The Director's
rights are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by the
Director's creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date the
Company shall pay to the Director the benefit described in this Section 4.1 in
lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1
is the Deferral Account balance at the Director's Normal Retirement
Date.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in one hundred twenty (120) equal monthly installments
commencing on the first day of the month following the Director's
Normal Retirement Date. In determining the amount of the equal monthly
installments the Company shall credit interest pursuant to Section
3.1.2 on the remaining account balance during any applicable
installment period.
4.2 Termination of Service. Upon Termination of Service prior to
the Normal Retirement Age, the Company shall pay to the Director the benefit
described in this Section 4.2 in lieu of any other benefit under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of
Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a single lump sum within sixty (60) days of
Termination of Service.
4.3 Hardship Distribution. Upon the Board of Director's
determination (following petition by the Director) that the Director has
suffered an unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 Death During Active Service. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1 in lieu of any other
benefit under this Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is
the greater of: (i) the Deferral Account balance on the Director's
death; or, (ii) One Hundred Twelve Thousand One Hundred and No/100
Dollars ($112,100.00).
3
5.1.2 Payment of Benefit. The Company shall pay the amount
stated in Section 5.1.1 to the beneficiary in one hundred twenty (120)
equal monthly installments commencing on the first day of the month
following the Director's death. In determining the amount of the equal
monthly installments the Company shall credit interest pursuant to
Section 3.1.2 on the remaining account balance during any applicable
installment period.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before receiving all
such payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
5.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Director's beneficiary that the Director was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Director's death.
ARTICLE 6
BENEFICIARIES
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The Director may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Director and
accepted by the Company during the Director's lifetime. The Director's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Director or if the Director names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Director dies without a valid
beneficiary designation, all payments shall be made to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
4
ARTICLE 7
GENERAL LIMITATIONS
7.1 Suicide or Misstatement. The Company shall not pay any death
benefit under this Agreement exceeding the Deferral Account if the Director
commits suicide within two years after the date of this Agreement, or if the
Director has made any material misstatement of fact on any application for life
insurance purchased by the Company.
7.3 Excess Parachute Payment. Notwithstanding any provision of
this Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 Claims Procedure. The Company shall notify any person or
entity that makes a claim against the Agreement (the "Claimant") in writing,
within 90 days of Claimant's written application for benefits, of his or her
eligibility or non-eligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the Claimant
to perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the Claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall notify the
Claimant of the special circumstances and the date by which a decision is
expected to be made, and may extend the time for up to an additional 90 days.
8.2 Review Procedure. If the Claimant is determined by the Company
not to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall notify
the Claimant of its decision in writing within the 60-day period, stating
specifically the basis of its decision, written in a manner calculated to be
understood by the Claimant and the specific provisions of the Agreement on which
the decision is based. If, because of the need for a hearing, the 60-day period
is not sufficient, the decision may be deferred for up to another 60 days at the
election of the Company, but notice of this deferral shall be given to the
Claimant.
5
ARTICLE 9
AMENDMENTS AND TERMINATION
9.1 Agreed Amendment or Termination. Subject to Section 9.2, this
Agreement may be amended or terminated only by a written agreement signed by the
Company and the Director.
9.2 Amendment or Termination by Operation of Law. The Company may
amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would (i) cause
benefits to be taxable to the Director prior to actual receipt, or (ii) result
in significant financial penalties or other significantly detrimental
ramifications to the Company (other than the financial impact of paying the
benefits). In no event shall this Agreement be terminated under this Section 9.2
without payment to the Director of the Deferral Account balance within in a
single lump sum sixty (60) days of a termination of this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain in the service of
the Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain in the service of the
Company nor interfere with the Director's right to terminate services at any
time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by Mississippi state law, except to the extent preempted by the laws
of the United States of America.
10.6 Unfunded Arrangement. The Director and the Director's
beneficiary are general unsecured creditors of the Company for the payment of
benefits under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on the
Director's life is a general asset of the Company to which the Director and the
Director's beneficiary have no preferred or secured claim.
10.7 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm, or
6
person unless such succeeding or continuing company, firm, or person agrees to
assume and discharge the obligations of the Company under this Agreement.
10.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Director as to the subject matter hereof.
No rights are granted to the Director by virtue of this Agreement other than
those specifically set forth herein.
10.9 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting
for the Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement.
10.10 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
10.11 Full Obligation. Notwithstanding any provision to the
contrary, when the Company has paid either the lifetime benefits or death
benefits as appropriate under any section of the Agreement, the Company has
completed its obligation to the Director.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR:
________________________________________ Date: ________________________
XXX X. XXXXX
THE PEOPLES BANK
By: __________________________________ Date: _____________________________
Its: __________________________________
7
EXHIBIT A
TO
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
DEFERRAL ELECTION
I elect to defer my Fees received under this Agreement with the Company, as
follows:
AMOUNT OF DEFERRAL DURATION
----------------------------------- --------------------------
[INITIAL AND COMPLETE ONE] [INITIAL ONE]
_____ I elect to defer ___________% ______ One Year only
of my Fees.
_____ I elect to defer $__________ ______ For ______ [INSERT
of my annual Fees. NUMBER] Years
_____ I elect not to defer any of _____ Until Normal
my Fees. Retirement Age
I understand that I may change the amount and duration of my deferrals by filing
a new election form with the Company; provided, however, that any subsequent
election will not be effective until the calendar year following the year in
which the new election is received by the Company.
Signature ____________________________________
XXX X. XXXXX
Date ____________________________
Accepted by the Company this ________ day of ___________________, 20___.
By __________________________________________
Title ______________________________
8
BENEFICIARY DESIGNATION
THE PEOPLES BANK
DIRECTOR DEFERRED FEE AGREEMENT
I designate the following as beneficiary of benefits under this Agreement
payable following my death:
Primary: ______________________________________________________________________
_______________________________________________________________________________
Contingent: __________________________________________________________________
_______________________________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(s)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature __________________________________
XXX X. XXXXX
Date __________________________
Accepted by the Company this ________ day of ___________________, 20____.
By __________________________________________
Title ________________________________
9
